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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
the Securities Exchange Act of 1934
Date
of Report (date of earliest event reported): September 25, 2024
Hyzon Motors Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-39632 |
|
82-2726724 |
(State
or other jurisdiction of
incorporation or organization) |
|
(Commission
File Number) |
|
(I.R.S.
Employer
Identification Number) |
599 South Schmidt Road
Bolingbrook,
IL | |
60440 |
(Address
of principal executive offices) |
|
(Zip
Code) |
(585)-484-9337
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
| ☐ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Class A common stock, par value $0.0001 per share |
|
HYZN |
|
NASDAQ
Capital Market |
Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $575.00 per share |
|
HYZNW |
|
NASDAQ
Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item
8.01. Other Events.
As previously disclosed, Hyzon Motors Inc. (the
“Company”) entered into a Sales Agreement (the “Sales Agreement”) with Roth Capital Partners, LLC (the “Sales
Agent”) dated June 6, 2024. The Sales Agreement also included BTIG, LLC (“BTIG”) as a Sales Agent thereunder, and pursuant
to the existing terms of the Sales Agreement, the Company and BTIG mutually agreed, pursuant to a notice of termination dated September
20, 2024, that BTIG would no longer participate as agent or principal with respect to any offerings under the Sales Agreement. Pursuant
to the Sales Agreement, the Sales Agent will act as the Company’s agent with respect to an offering and sale, at any time and from
time to time, of the Company’s Class A common stock, par value $0.0001 per share (the “Shares”). The Company has authorized
the sale, at its discretion, of Shares in an aggregate offering amount up to $50,000,000 under the Sales Agreement. Sales of the Shares,
if any, will be made in “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended (the
“Securities Act”). The Sales Agent will use commercially reasonable efforts consistent with normal trading and sales practices.
The
Shares to be sold under the Sales Agreement, if any, will be issued and sold pursuant to the Company’s shelf registration statement
on Form S-3 (File No. 333-280006), previously filed with the Securities and Exchange Commission (“SEC”)
on June 6, 2024, and declared effective by the SEC on June 26, 2024.
On
September 25, 2024, the Company filed a prospectus supplement related to the Company’s “at the market offering” with
the SEC. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any Shares
nor shall there be any sale of Shares in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state or other jurisdiction.
The
legal opinion of Foley & Lardner LLP relating to the legality of the issuance and sale of the Shares is attached as Exhibit
5.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
|
HYZON MOTORS INC. |
|
|
|
Date: September 25, 2024 |
By: |
/s/ Parker Meeks |
|
Name: |
Parker Meeks |
|
Title: |
Chief Executive Officer |
2
Exhibit 5.1
|
ATTORNEYS
AT LAW
777
East Wisconsin Avenue
Milwaukee,
WI 53202-5306
414.271.2400
TEL
414.297.4900
FAX
www.foley.com |
September
25, 2024
Hyzon
Motors Inc.
599
South Schmidt Road
Bolingbrook,
Illinois 60440
Ladies
and Gentlemen:
We
have acted as counsel to Hyzon Motors Inc., a Delaware corporation (the “Company”), in connection with the Company’s
proposed issuance and sale, through Roth Capital Partners, LLC, as sales agent (the “Sales Agent”),
of up to $50,000,000 of shares of the Company’s Class A common stock, par value $0.0001 per share (the “Shares”),
from time to time and at various prices in an “at-the-market” offering pursuant to (i) that certain Sales Agreement, dated
June 6, 2024 (the “Offering Agreement”), by and among the Company and the Sales Agent, and (ii) the Company’s
Registration Statement on Form S-3 filed by the Company with the Securities and Exchange Commission on June 6, 2024 and declared effective
on June 26, 2024 (the “Registration Statement”), the base prospectus filed as part of the Registration Statement (the
“Base Prospectus”), and the final prospectus supplement dated September 25, 2024 relating to the potential issuance
and sale by the Company, from time to time, of the Shares (together with the Base Prospectus, the “Prospectus”).
As
counsel to the Company in connection with the proposed potential issuance and sale of the Shares, and as a basis for the opinion hereinafter
set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively,
the “Documents”): (i) the Offering Agreement, (ii) the Registration Statement and the Prospectus, (iii) the Company’s
Second Amended and Restated Certificate of Incorporation, as amended, and Second Amended and Restated Bylaws and (iv) the proceedings
and actions taken by the Board of Directors of the Company (or a duly authorized committee thereof) to authorize and approve the transactions
contemplated by the Offering Agreement, the execution and delivery of the Offering Agreement, and the issuance and sale of the Shares
(the “Resolutions”). We have also considered such matters of law and of fact, including the examination of originals
or copies, certified or otherwise identified to our satisfaction, of such records and documents of the Company, certificates of officers,
directors and representatives of the Company, certificates of public officials, and such other documents as we have deemed appropriate
as a basis for the opinions set forth below.
In
expressing the opinion set forth below, we have assumed the following:
1.
Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do
so, and that each of the parties executing any of the Documents have duly and validly done so.
2.
Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
AUSTIN
Boston
CHICAGO
dallas
DENVER |
DETROIT
houston
JACKSONVILLE
LOS ANGELES
MADISON |
MEXICO
CITY
MIAMI
MILWAUKEE
NEW YORK
ORLANDO |
SACRAMENTO
salt lake
city
SAN DIEGO
SAN FRANCISCO
SILICON
VALLEY |
TALLAHASSEE
TAMPA
WASHINGTON,
D.C.
BRUSSELS
TOKYO |
September 25, 2024
Page 2
3.
All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts
do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All
Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents
are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All statements and information
contained in the Documents are true and complete. There has been no oral or written modification or amendment to the Documents, or
waiver of any provision of the Documents, by action or omission of the parties or otherwise.
4.
The Company will issue the Shares in accordance with the Resolutions and, prior to the issuance of any Shares, the Company will have
available for issuance, under the Company’s Second Amended and Restated Certificate of Incorporation, as amended, the
requisite number of authorized but unissued shares of Class A common stock. As of the date hereof, the Company has available for
issuance, under the Company’s Second Amended and Restated Certificate of Incorporation, as amended, the requisite number of
authorized but unissued shares of Class A common stock for the issuance of the Shares.
Our
opinions expressed herein are limited to the General Corporation Law of the State of Delaware, and we express no opinion as to the laws
of any other jurisdiction.
Based
upon, subject to and limited by the foregoing, we are of the opinion that, upon the issuance of the Shares pursuant to the terms of the
Offering Agreement and the receipt by the Company of the consideration for the Shares (not less than par value) pursuant to the terms
of the Offering Agreement, the Shares will be validly issued, fully paid, and nonassessable.
This
opinion is issued as of the date hereof, and we assume no obligation to supplement this opinion if any applicable law changes after the
date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. This opinion is limited
to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.
We
consent to the filing of this opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act
of 1933, as amended (the “Securities Act”), as Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed
with the Commission on the date hereof, to the incorporation by reference of this opinion into the Registration Statement and the Prospectus
and to the references to our firm therein. In giving our consent, we do not admit that we are “experts” within the meaning
of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act.
|
Very truly yours, |
|
|
|
/s/ Foley & Lardner LLP |
|
|
|
Foley & Lardner LLP |
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|
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|
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|
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Hyzon Motors (NASDAQ:HYZNW)
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