HYDROGENICS CORPORATION - CORPORATION HYDROGENIQUE |
(Name of Issuer)
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Common Stock |
(Title of Class of Securities)
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448883207 |
(CUSIP Number)
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Sylvain Tongas L’Air Liquide S.A. 75, Quai d’Orsay 75321 Paris France +33 1 40 62 53 36 |
Richard Raymer
Dorsey & Whitney LLP
TD Canada Trust Tower, Brookfield Place
161 Bay Street, Suite 4310
Toronto, Ontario M5J 2S1
(416) 367-7388
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
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June 28, 2019 |
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(Date of Event which Requires Filing of this Statement)
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CUSIP No. 44883207
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13D
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1
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NAMES OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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The Hydrogen Company
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☒
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(b)
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☐
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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OO
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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France
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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3,537,931
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8
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SHARED VOTING POWER
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None
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9
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SOLE DISPOSITIVE POWER
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3,537,931
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10
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SHARED DISPOSITIVE POWER
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None
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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3,537,931
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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18.6% (1)
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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CO
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(1)
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Calculated based on 18,987,414 shares of common stock of Hydrogenics Corporation (the “Issuer”), as reported on the Issuer’s Form 6-K filed
with the Securities and Exchange Commission on May 14, 2019.
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CUSIP No. 44883207
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13D
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1
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NAMES OF REPORTING PERSONS
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I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
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L'Air Liquide S.A.
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2
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
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(a)
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☒
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(b)
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☐
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3
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SEC USE ONLY
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4
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SOURCE OF FUNDS (SEE INSTRUCTIONS)
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OO
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5
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
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☐
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6
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CITIZENSHIP OR PLACE OF ORGANIZATION
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France
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NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
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7
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SOLE VOTING POWER
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3,537,931
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8
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SHARED VOTING POWER
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None
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9
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SOLE DISPOSITIVE POWER
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3,537,931
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10
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SHARED DISPOSITIVE POWER
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None
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11
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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3,537,931
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12
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
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☐
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13
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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18.6% (2)
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14
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TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
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CO
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(2)
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Calculated based on 18,987,414 shares of common stock of Hydrogenics Corporation (the “Issuer”), as reported on the Issuer’s Form 6-K filed with the
Securities and Exchange Commission on May 14, 2019.
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CUSIP No. 44883207
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13D
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This statement on Schedule 13D relates to the Common Stock, no par value (“Common Stock”), of Hydrogenics Corporation, a corporation organized under the laws of Canada (the “Issuer”). The address of the principal executive offices of the Issuer is at 220 Admiral Boulevard, Mississauga, Ontario, L5T 2N6, Canada.
This statement on Schedule 13D is filed by The Hydrogen Company (“H2C”). On December 21, 2018, H2C acquired 3,537,931 shares of the Issuer’s Common Stock, as described more fully in Item 5 below.
H2C is a corporation incorporated under the laws of France, having its principal office at 6, rue Cognacq-Jay 75007 Paris, France. H2C’s principal business is principally to develop products, equipment and infrastructure in the field of hydrogen-energy, including through the holding of participations in other companies. The directors and executive officers of H2C and their business address, principal occupation or employment and the name, address, and principal business of the entity for which said occupation or employment is conducted are indicated below.
Name | Position | Principal occupation | Business address | |||
François DARCHIS | Chairman of the Board | Senior Vice President, L'Air Liquide SA | L’Air Liquide S.A. - 75, quai d'Orsay, Paris (75007) - France | |||
Benoît POTIER | Board member | Chairman of the Board and Chief Executive Officer, L'Air Liquide SA | L’Air Liquide S.A. - 75, quai d'Orsay, Paris (75007) - France | |||
Fabienne LECORVAISIER | Board member | Executive Vice-President, L'Air Liquide SA | L’Air Liquide S.A. - 75, quai d'Orsay, Paris (75007) - France | |||
Pierre-Etienne FRANC | Chief Executive Officer and Board member | Vice-President - Hydrogen Initiative, L'Air Liquide SA | L’Air Liquide S.A. - 75, quai d'Orsay, Paris (75007) - France |
During the last five years, none of H2C or (to the knowledge of H2C) the directors or executive officers of H2C (a) has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) has been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
CUSIP No. 44883207
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13D
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This statement on Schedule 13D is also filed by L’Air Liquide S.A., a corporation incorporated under the laws of France, having its principal office at 75, Quai d’Orsay, 75321 Paris, France. L’Air Liquide S.A. is the beneficial owner of all of the outstanding shares of capital stock of H2C and, accordingly, may be considered the beneficial owner of the Common Stock acquired by H2C. L’Air Liquide S.A.’s principal business is the holding of companies active in the provision of industrial and medical gases and related technologies and services. The directors and executive officers of L’Air Liquide S.A. and their business address, principal occupation or employment and the name, address, and principal business of the entity for which said occupation or employment is conducted are indicated below.
Name | Position | Principal occupation | Business address | |||
Benoît POTIER | Chairman of the Board and Chief Executive Officer | Same as “Position” | L’Air Liquide S.A. - 75, quai d'Orsay, Paris (75007) - France | |||
Thierry PEUGEOT | Board member | NA (retired) | Peugeot S.A. - 75, avenue de la Grande Armee, Paris (75116) - France | |||
Pierre DUFOUR | Board member | NA (retired) | L’Air Liquide S.A. - 75, quai d'Orsay, Paris (75007) - France | |||
Karen KATEN | Board member | Senior adviser, EW Healthcare Partners | EW Healthcare Partners – 280 Park Avenue, 27th Floor East – New York, NY 10017 – USA | |||
Jean-Paul AGON | Board member | Chairman and Chief Executive Officer, L’Oréal | L’Oréal – 41, rue Martre – 92110 Clichy – France | |||
Rebecca Siân HERBERT-JONES | Board member | Member of the board of directors of various companies | 11 rue de Saint Senoch, Paris (75017) - France | |||
Sin LENG LOW | Board member | Chairman and Director, Nanyang Academy of Fine Arts (NAFA) | Nanyang Academy of Fine Arts – 80 Bencoolen Street – Singapore 189655 | |||
Annette WINKLER | Board member | Member of the Supervisory Board – Mercedes-Benz South Africa | Villa Kayser - Uhlbacher Strasse 7 70329 Stuttgart – Germany | |||
Philippe DUBRULLE | Board member | Programs & Services Manager, Aerospace & Defense, Air Liquide Advanced Technologies | Air Liquide Advanced Technologies – 2, rue de Clémencière, Sassenage (38360) – France | |||
Geneviève BERGER | Board member | Head of the Research Department, Firmenich SA | Firmenich SA – Route des Jeunes – 1 P.O. Box 239 – 1211 Geneva 8 – Switzerland | |||
Brian GILVARY | Board member | Chief Financial Officer and Director, BP p.l.c | BP p.l.c. – 1 St James’s Square – London SW1Y 4PD – United-Kingdom |
CUSIP No. 44883207
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13D
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Name | Position | Principal occupation | Business address | |||
Brian GILVARY | Board member | Chief Financial Officer and Director, BP p.l.c | BP p.l.c. – 1 St James’s Square – London SW1Y 4PD – United-Kingdom | |||
Xavier HUILLARD | Board member | Chairman and Chief Executive Officer, VINCI SA | VINCI – 1, cours Ferdinand de Lesseps, 92851 Rueil-Malmaison Cedex – France |
H2C acquired the Common Stock as an investment and in order to support the business of the Issuer. H2C is entitled to, as long as H2C holds 10% or more of the Issuer’s outstanding Common Stock, designate a Director to the Issuer’s Board (see Item 5 below), and such Director will participate fully in the deliberations of the Board (the “Board Right”). The Subscription Agreement provides that for as long as H2C holds 5% or more of the Issuer’s outstanding Common Stock, H2C will have pre-emptive rights to participate in any financing of the Issuer in order to maintain its pro rata interest in the Issuer (the “Pre-Emptive Rights”). These pre-emptive rights will not apply to certain specified issuances of securities by the Issuer.
CUSIP No. 44883207
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13D
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Exhibit No. |
Description |
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Exhibit 99.1 | Subscription Agreement dated as of December 21, 2018 by and between Hydrogenics Corporation and The Hydrogen Company.†** | |
Exhibit 99.2 |
Funding and Investment Agreement dated June 28, 2019 |
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Exhibit 99.3 |
Voting and Support Agreement dated June 28, 2019 |
† The Hydrogen Company agrees to furnish to the SEC a supplementary copy of all omitted schedules and the exhibit to the Subscription Agreement.
CUSIP No. 44883207
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13D
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THE HYDROGEN COMPANY |
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By:
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/s/ Pierre-Etienne Franc
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Name: Pierre-Etienne FRANC
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Title: Directeur Général
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L'AIR LIQUIDE S.A. |
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By:
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/s/ Fabienne Lecorvaisier
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Name: Fabienne LECORVAISIER
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Title: Executive Vice-President
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Exhibit No. |
Description |
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Exhibit 99.1 | Subscription Agreement dated as of December 21, 2018 by and between Hydrogenics Corporation and The Hydrogen Company.†** | |
Exhibit 99.2 |
Funding and Investment Agreement dated June 28, 2019 |
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Exhibit 99.3 |
Voting and Support Agreement dated June 28, 2019 |
† The Hydrogen Company agrees to furnish to the SEC a supplementary copy of all omitted schedules and the exhibit to the Subscription Agreement.
(a) |
Hydrogen beneficially owns, or controls or directs, the number of common shares (the "Common Shares") of Hydrogenics Corporation (the "Company") set forth under or opposite Hydrogen's
name in Schedule A hereto;
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(b) |
Cummins wishes to acquire all of the issued and outstanding Common Shares pursuant to a plan of arrangement (the "Plan of Arrangement") of the Company under the Canada Business Corporations
Act ("CBCA") scheduled to an arrangement agreement among Purchaser (as defined below) and the Company dated the date hereof
(the "Arrangement Agreement"), as such Plan of Arrangement or Arrangement Agreement may be amended from time to time (the "Transaction").
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(c) |
Cummins has incorporated Atlantis AcquisitionCo Canada Corporation ("Purchaser") under the Business Corporations Act (Ontario) for purposes of completing the Transaction, and prior to
the closing of the Transaction (the "Closing"), beneficially owns or exercises control and direction over all of the outstanding
common shares of Purchaser;
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(d) |
pursuant to the Transaction, Hydrogen intends to contribute all of the Common Shares it beneficially owns or over which it exercises control or direction
(the "Rollover Shares") set forth opposite Hydrogen's name in Schedule A hereto, to Purchaser, in exchange for common shares in the
capital of Purchaser, as set forth in the Plan of Arrangement;
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(e) |
pursuant to the Transaction, Hydrogen intends to acquire directly or indirectly additional common shares in the capital of Purchaser for an interest in the
Company post-closing of up to 19.99%;
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(f) |
concurrently with the entering into of this Agreement, Purchaser has entered into, among other things, a voting and support agreement (the "Support Agreement") with Hydrogen, pursuant to which Hydrogen has agreed, among other things, to support the Transaction and to vote the
Common Shares beneficially owned, or over which control or direction is exercised by Hydrogen, in favour of the Transaction subject to, and in accordance with, the terms of the Support Agreement;
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(g) |
prior to or concurrently with the Closing, the Parties will enter into, or cause any person of which they are deemed to control the shares as set forth in
Schedule A hereto, to enter into, the Shareholders Agreement (as such term is defined below) setting forth the governance of Purchaser and other arrangements regarding their ownership in the share capital of the Purchaser after the
completion of the Transaction and the transactions set forth in this Agreement, the terms of which are set forth in the term sheet (the "Term
Sheet") attached hereto as Schedule B; and
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(h) |
the Parties wish to agree to certain terms and conditions relating to the funding of the Transaction and their relationship in connection with their joint
pursuit of the Transaction.
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1. |
Cooperation in Completing the Transaction
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1.1 |
Each Party agrees:
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(a) |
to cooperate, negotiate and finalize a shareholders agreement containing provisions for the post-closing governance of Purchaser and the Company and other
arrangements regarding its ownership of shares (and/or the ownership of any person of which it is deemed to control the shares as set forth in Schedule A hereto) of Purchaser after the completion of the Transaction on substantially the
terms set forth in the Term Sheet (the "Shareholders Agreement"), and any other agreements and arrangements entered into in
connection with the Closing (such agreements and arrangements, together with this Agreement, the Arrangement Agreement, the Shareholders Agreement and the Support Agreement, the "Transaction Agreements"), each of which shall reflect the terms set forth herein and in the Arrangement Agreement and otherwise be in a form acceptable to each Party;
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(b) |
to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Party in doing, all things reasonably
necessary, proper or advisable to:
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(i) |
perform and comply with all agreements, representations, warranties and covenants required to be performed by such Party (or any person of which it is deemed
to control the shares as set forth in Schedule A hereto) under the Transaction Agreements and to consummate the Transaction and other transactions contemplated by the Transaction Agreements;
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(ii) |
to consummate the Transaction and other transactions contemplated by the Transaction Agreements, including using its commercially reasonable efforts to
(A) obtain all necessary consents, approvals and authorizations as are required to be obtained by such Party (or any person of which it is deemed to control the shares as set forth in Schedule A hereto) with respect to this Agreement,
the Transaction, the Transaction Agreements and the transactions contemplated hereby and thereby; (B) lift or rescind any injunction or restraining order or other order adversely affecting the ability of such Party (or any person of
which it is deemed to control the shares as set forth in Schedule A hereto) to consummate this Agreement, the Transaction, the Transaction Agreements and the transactions contemplated hereby and thereby; and (C) fulfill all conditions
and satisfy all provisions of this Agreement and the Transaction Agreements applicable to such Party (or any person of which it is deemed to control the shares as set forth in Schedule A hereto); and
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(iii) |
subject to compliance by the other Party with the terms hereof, cause Purchaser to perform and comply with all agreements, representations, warranties and
covenants required to be performed by Purchaser under the Transaction Agreements and to consummate the Transaction and other transactions contemplated by the Transaction Agreements;
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(iv) |
not to take any action that will, or would reasonably be expected to, result in a breach or violation of the Transaction Agreements by such Party (or any
person of which it is deemed to control the shares as set forth in Schedule A hereto) or by Purchaser or otherwise adversely affect the success of the Transaction.
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1.2 |
Each Party, as applicable, shall provide to the other Party copies of all notices, communications, draft press releases and proceedings received by such Party
in connection with the Arrangement Agreement or the Plan of Arrangement, but solely to the extent such Party is not otherwise entitled to receive such
notices, communications, draft press releases or proceedings pursuant to the Arrangement Agreement and the Plan of Arrangement.
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2. |
Contributions
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2.1 |
Hydrogen shall (i) contribute the Rollover Shares to Purchaser in accordance with the terms of the Transaction Agreements, valued at the price paid to the
shareholders of the Company in connection with the Transaction, in exchange for a number of common shares of Purchaser representing an equity and voting interest in Purchaser as set forth opposite Hydrogen's name in Schedule A hereto,
and (ii) directly or indirectly contribute such cash amount set forth opposite Hydrogen's name in Schedule A hereto, providing that Hydrogen’s interest in the Company post-closing does not exceed 19.99%.
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2.2 |
Cummins shall contribute, or cause to be contributed, such cash amount set forth opposite Cummins' name in Schedule A hereto to Purchaser in exchange for a number of common shares of Purchaser representing an
equity and voting interest in Purchaser as set forth opposite Cummins's name in Schedule A hereto.
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3. |
Decisions relating to the Transaction
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3.1 |
Until this Agreement is terminated in accordance with Section 8 (Termination) hereof, all decisions with respect to the Transaction and the Transaction Agreements shall be made jointly by Cummins and
Hydrogen, including any decision (i) to modify the terms and conditions of the Transaction, (ii) to enter into any Transaction Agreements, (iii) to amend, modify or waive any term or condition of the Transaction Agreements (other than
the Support Agreement with respect to which decisions shall be made by Purchaser or by Cummins exclusively), (iv) to terminate any Transaction Agreement in accordance with its terms (other than the Support Agreement with respect to
which decisions shall be made by Purchaser or by Cummins exclusively), (v) as to whether the conditions in the Arrangement Agreement have been satisfied, and (vi) in connection with any governmental or regulatory approvals required in
connection with the Transaction. Notwithstanding the foregoing, where Purchaser wishes to amend the terms of Arrangement Agreement or Plan of Arrangement and such amendment affects the per share consideration payable to shareholders of
the Company and such amendment does not otherwise negatively impact Hydrogen from a financial perspective, then Purchaser may unilaterally amend such agreements.
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4. |
Representations and Warranties of Cummins
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4.1 |
Cummins hereby represents and warrants to and in favour of Hydrogen that:
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(a) |
it is a body corporate duly and validly constituted, organized and existing under the laws of its jurisdiction of constitution and has the corporate power and
authority to enter into and perform its obligations under this Agreement;
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(b) |
the execution, delivery and performance by Cummins of this Agreement (i) have been duly authorized by all necessary corporate action on its part, and (ii) do
not and will not (or would not with the giving of notice, the lapse of time, or both, or the happening of any other event or condition) result in a breach, default or violation of, or conflict with or allow any other person to exercise
any rights under, any term, condition or provision of (A) its governing documents or any resolutions of its board of directors or shareholders or (B) any contracts to which Cummins is a party;
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(c) |
this Agreement has been duly executed and delivered by, and constitutes a legal, valid and binding obligation of, enforceable against, Cummins in accordance
with its terms subject only to any limitation on enforcement under applicable laws relating to (i) bankruptcy, winding-up, insolvency, arrangement and other similar laws of general application affecting the enforcement of creditors'
rights and (ii) the discretion that a court may exercise in the granting of extraordinary remedies such as specific performance and injunction;
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(d) |
Cummins has, or will have at Closing, all funds necessary to pay the aggregate consideration for all of the Common Shares (excluding the Rollover Shares) to
be acquired and to lend to the Company the aggregate amount payable for all of the Company Options, DSUs, PSUs and RSUs to be cancelled, the whole pursuant to, and in accordance with, the Arrangement Agreement and Plan of Arrangement;
and
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(e) |
no person has any written or oral agreement, option or warrant, or any right or privilege (whether by law or by contract) capable of becoming such, for the
purchase, acquisition or transfer from Cummins of any of the common shares of Purchaser beneficially owned by Cummins or over which Cummins exercises control or direction.
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4.2 |
Cummins acknowledges that Hydrogen is relying on the representations and warranties contained in Section 4.1 for the purpose of the Transaction and that it is
an essential condition to Hydrogen entering into this Agreement.
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5. |
Representations and Warranties of Hydrogen
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5.1 |
Hydrogen hereby represents and warrants to and in favour of Cummins that:
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(a) |
it is a body corporate duly and validly constituted, organized and existing under the laws of its jurisdiction of constitution and has the corporate power and
authority to enter into and perform its obligations under this Agreement;
|
(b) |
the execution, delivery and performance by Hydrogen of this Agreement (i) have been duly authorized by all necessary corporate action on its part, and (ii) do
not and will not (or would not with the giving of notice, the lapse of time, or both, or the happening of any other event or condition) result in a breach, default or violation of, or conflict with or allow any other person to exercise
any rights under, any term, condition or provision of (A) its governing documents or any resolutions of its board of directors or shareholders or (B) any contracts to which Hydrogen is a party;
|
(c) |
this Agreement has been duly executed and delivered by, and constitutes a legal, valid and binding obligation of, enforceable against, Hydrogen in accordance
with its terms subject only to any limitation on enforcement under applicable laws relating to (i) bankruptcy, winding-up, insolvency, arrangement and other similar laws of general application affecting the enforcement of creditors'
rights and (ii) the discretion that a court may exercise in the granting of extraordinary remedies such as specific performance and injunction;
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(d) |
Hydrogen is the sole and unconditional owner of 3,537,931 common shares of the Company, with good and valid title thereto, free and clear of all liens, and
has the sole right to vote and sell all of such shares, and the only common shares of the Company beneficially owned, directly or indirectly, by Hydrogen on the date hereof are such Common Shares; and
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(e) |
no person has any written or oral agreement, option or warrant, or any right or privilege (whether by law or by contract) capable of becoming such, for the
purchase, acquisition or transfer from Hydrogen of any of the Common Shares of the Company beneficially owned by Hydrogen or over which Hydrogen exercises control or direction.
|
5.2 |
Hydrogen acknowledges that Cummins is relying on the representations and warranties contained in Section 5.1 for the purpose of the Transaction and that it
is an essential condition to Cummins entering into this Agreement.
|
6. |
Regulatory Matters
|
6.1 |
The Parties agree to cause the Purchaser to make all filings, notifications and submissions that are required or, in the opinion of both Parties (acting
reasonably), that are advisable in connection with the Transaction under any applicable antitrust, competition, foreign investment, fair trade or similar laws or regulations (collectively, "Antitrust Laws"). The Parties will cause the Purchaser to use its commercially reasonable
efforts to cause the expiry of any applicable waiting periods under, and to obtain any required approvals or clearances pursuant to any Antitrust Laws in connection with the Transaction. The Parties agree to collaborate and cooperate
with each other in connection with any regulatory approvals required in connection with the Transaction, including exchanging information and providing such assistance as is reasonably required.
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6.2 |
Each Party shall use commercially reasonable efforts to
supply and provide, or cause to be supplied or provided, information that is accurate in all material respects to any governmental authority requesting such information in connection with filings or notifications under, or relating to,
Antitrust Laws. If any governmental authority asserts any objections with respect to the Transaction under any Antitrust Law, and such objections relate to the activities or investments of a Party (or any person of which it is deemed to
control the shares as set forth in Schedule A hereto), such Party shall attempt to resolve such objections; provided, however, that no Party (or any person of which it is deemed to control the shares as set forth in Schedule A hereto)
shall be required to dispose of any assets, or enter into any agreements that restrict the activities, of such Party or its affiliates as a condition of resolving any such objections under Antitrust Laws.
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6.3 |
Cummins agrees that it and the Purchaser are bound by their respective obligations under the Arrangement Agreement with respect to any regulatory approvals
required on its behalf in connection with the Transaction and the Transaction Agreements.
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7. |
Expenses
|
7.1 |
Subject to Section 7.2 below, all expenses and professional fees incurred in connection with the negotiation of this Agreement and the Shareholders
Agreement shall be paid by the Party incurring such expenses or fees, whether or not the Transaction is consummated.
|
7.2 |
All expenses and professional fees incurred in connection with the Formal Valuation shall be shared equally between the Parties, whether or not the
Transaction is consummated.
|
8. |
Termination
|
8.1 |
This Agreement shall become effective on the date hereof and shall terminate upon the earliest of:
|
(a) |
11:59 p.m. (Toronto time) on December 20, 2019;
|
(b) |
the Closing of the Transaction; and
|
(c) |
mutual agreement of the Parties in writing;
|
8.2 |
Termination of this Agreement shall not relieve any Party of any liability for breach of this Agreement prior to such termination.
|
9. |
Confidentiality
|
9.1 |
Each Party agrees to, and shall cause its Representatives and any person of which it is deemed to control the shares as set forth in Schedule A hereto to,
keep confidential any information supplied by or on behalf of any of the other Party (or any person of which it is deemed to control the shares as set forth in Schedule A hereto) in connection with the Transaction and the other
transactions contemplated herein, including the terms of this Agreement (including, for greater certainty, all Schedules to this Agreement) and any other agreements or documents to be delivered as contemplated by this Agreement (all
such information, "Confidential Information"), and shall not disclose to any person or make public or authorize the disclosure of any
such Confidential Information and shall use, and cause its Representatives and any person of which it is deemed to control the shares as set forth in Schedule A hereto to use, the Confidential Information only in connection with the
Transaction; provided that the term "Confidential Information" shall not include specific information that: (a) is already in such Party's possession, provided that such information is not subject to another confidentiality agreement with, or other obligation of secrecy to, any person; (b) is or becomes generally available to the public other than as a result of a disclosure,
directly or indirectly, by such Party or such Party's Representatives or any person over which such Party is deemed to control the shares as set forth in Schedule A hereto, in breach of this Agreement; (c) is or becomes available to
such Party on a non-confidential basis from a source other than either of the Parties hereto or any of their respective Representatives or any persons of which they are deemed to control the shares as set forth in Schedule A hereto,
provided that such source is not known by such Party to be bound by a confidentiality agreement with, or other obligation of secrecy to, any person; or (d) is independently generated by or on behalf of the receiving Party without the
use and not as a consequence of the disclosure by the other Party.
|
9.2 |
Nothing contained in this Section 9 shall prevent any Party from disclosing Confidential Information (a) upon the order of any court or administrative agency,
(b) upon the request or demand of any stock exchange or regulatory agency or authority having jurisdiction over such Party, (c) to the extent required by law or regulation, (d) to the extent necessary in connection with the exercise of
any remedy, hereunder, and (e) to such Party's Representatives or any person of which such Party is deemed to control the shares as set forth in Schedule A hereto, that need to know such information (it being understood and agreed that,
in the case of clauses (a), (b) or (c) above, such Party shall notify the other Party of the proposed disclosure as far in advance of such disclosure as practicable and use commercially reasonable efforts to ensure that any information
so disclosed is accorded confidential treatment, when and if available).
|
10. |
Public Announcements
|
11. |
Dispute Resolution
|
11.1 |
If any dispute, controversy or claim arises out of or in connection with this Agreement (a "Dispute"), each Party shall use commercially reasonable efforts to resolve the matter amicably. If the Dispute has not been resolved, for any reason, within 30 days following delivery of a
notice of Dispute, the Dispute will be resolved by arbitration as follows:
|
(a) |
either Party may commence arbitration in respect of a Dispute by delivering to the other Party a written notice of arbitration. The Dispute will be arbitrated
and resolved by ICDR Canada in accordance with its Canadian Arbitration Rules;
|
(b) |
the place of arbitration will be Toronto, Ontario, the arbitration tribunal shall consist of three (3) arbitrators and the language of arbitration will be
English;
|
(c) |
the arbitration will be kept confidential and the existence of the proceeding and any element of it (including any pleadings, briefs or other documents
submitted or exchanged, any testimony or other oral submissions and any awards) will not be disclosed beyond the arbitrator, the Parties, their counsel and any person necessary to the conduct of the proceeding, except as may lawfully be
required in judicial proceedings relating to the arbitration or otherwise as may be required by law; and
|
(d) |
this arbitration provision will be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario, Canada.
|
11.2 |
A Party that is a party to a Dispute may, at any time, make an offer to the other Party to settle all or any part of the Dispute. Any offer to settle
will be deemed to be an offer of compromise made in confidence and without prejudice. The fact that an offer to settle has been made will not be communicated to the arbitrator until the arbitrator has made a final determination of all
aspects of the Dispute other than costs. If an offer to settle is not accepted and the arbitration award is no more favourable to the Party to which the offer was made, the Party making the offer will be entitled to all of its costs in
connection with the arbitration in respect of the period from the date the offer to settle was made to the making of the arbitration award.
|
12.
|
Notice
|
12.1 |
Any notice, approval, consent, instruction, direction or other communication to be given under or in connection with this Agreement shall be in
writing and shall be given by personal or electronic delivery as set out below:
|
(a) |
In the case of Cummins:
|
(b) |
In the case of Hydrogen:
|
12.2 |
Any notice, approval, consent, instruction, direction or other communication to be given under or in connection with this Agreement, if personally delivered,
shall be deemed to have been given and received on the date of delivery and if sent by electronic delivery with confirmation of transmission retained, on the date of delivery or transmission, as the case may be, if such date is a business day and if such delivery or transmission, as the case may be, is received prior to 5:00 p.m. (local time in place of receipt) and otherwise on the next
business day.
|
13. |
Entire Agreement
|
14. |
Third Party Beneficiaries
|
15. |
Exercise of Rights
|
16. |
Remedies
|
17. |
Governing Law
|
18. |
No Assignment
|
19. |
Severability
|
20. |
Amendments
|
21. |
Currency
|
22. |
No Representations or Duty
|
23. |
Counterparts
|
|
|
CUMMINS INC.
/s/ Thaddeus B. Ewald
|
|
Per:
|
Name: Thaddeus B. Ewald
Title: Vice President- Corporate Strategy and Business Development
|
|
|
THE HYDROGEN COMPANY
/s/ Pierre Etienne Franc
|
|
Per:
|
Name: Pierre Etienne Franc
Title: Directeur General
|
1. |
The Shareholder is the beneficial owner of, or has control or direction over, the Subject Shares.
|
2. |
The Shareholder understands that Hydrogenics Corporation (the “Company”),
Parent and Purchaser are, contemporaneously with the execution and delivery of this agreement (the “Agreement”), executing and
delivering the Arrangement Agreement.
|
3. |
The Subject Shares will be transferred to the Purchaser in consideration for the issuance of common shares of the Purchaser in connection with the
Arrangement;
|
4. |
The Shareholder has entered into a funding and investment agreement (the “Investment Agreement”) with Parent and Purchaser contemporaneously with the execution and delivery of this Agreement.
|
5. |
This Agreement (together with the Investment Agreement) sets out the terms and conditions of the agreement of the Shareholder to abide by the covenants in
respect of the Subject Shares and the other restrictions and covenants set forth herein.
|
1.1 |
Definitions
|
1.2 |
Singular; Plural, etc.
|
1.3 |
Headings, etc.
|
1.4 |
Date for any Action
|
1.5 |
Governing Law
|
1.6 |
Incorporation of Schedules
|
2.1 |
Representations and Warranties of the Shareholder
|
(a) |
The Shareholder has the necessary corporate power, authority and capacity to execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
|
(b) |
This Agreement has been duly executed and delivered by the Shareholder and constitutes a valid and binding obligation of the Shareholder enforceable against
it in accordance with its terms, subject to bankruptcy, insolvency and other Laws affecting the enforcement of creditors’ rights generally and subject to the qualification that equitable remedies may only be granted in the discretion
of a court of competent jurisdiction;
|
(c) | The Subject Shares represent all the securities of the Company beneficially owned, directly or indirectly, or controlled or directed by the Shareholder as at the date hereof. Other than the Subject Shares, neither the Shareholder nor any affiliate, as applicable (i) owns beneficially, or exercises control or direction over, directly or indirectly, additional securities of the Company or any of its affiliates or (ii) other than the Investment Agreement, has any agreement or option, or right |
or privilege (whether by Law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase or acquisition by the Shareholder or
any affiliate, as applicable, or transfer to the Shareholder or any affiliate, as applicable, of additional securities of the Company or any of its affiliates;
|
(d) |
The Shareholder is, and will continue to be on the Record Date, the beneficial owner of the Subject Shares, with good and marketable title thereto, free and
clear of all encumbrances, liens, restrictions (other than resale, vesting or other similar restrictions), charges, claims and rights of others;
|
(e) |
The Shareholder has the right to vote (to the extent permitted by the attributes of such Subject Shares) or direct the voting of the Subject Shares, subject
to any restriction included in the subscription agreement dated December 21, 2018 between the Company and the Shareholder;
|
(f) |
No person has any agreement or option, or any right or privilege (whether by Laws, pre-emptive or contractual) capable of becoming an agreement or option, for
the purchase, acquisition or transfer of any of the Subject Shares or any interest therein or right thereto, except Purchaser pursuant to the Arrangement; and
|
(g) |
Other than this Agreement and the Investment Agreement, none of the Subject Shares are subject to any proxy, voting trust, vote pooling or other agreement
with respect to the right to vote, call meetings of any of the Company’s securityholders or give consents or approvals of any kind.
|
2.2 |
Representations and Warranties of Parent and Purchaser
|
(a) |
Parent is a corporation validly existing under the laws of the State of Indiana, and has all necessary corporate power, authority and capacity to enter into
this Agreement and to carry out its obligations under this Agreement. Purchaser is a corporation incorporated and validly existing
under the Laws of Canada, and has all necessary corporate power, authority and capacity to enter into this Agreement and to carry out its obligations under this Agreement;
|
(b) |
The execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of Parent and Purchaser. This Agreement has been duly executed and delivered by Parent and Purchaser and
constitutes a valid and binding obligation of Parent and Purchaser enforceable against both Parent and Purchaser in accordance with its terms, subject to bankruptcy, insolvency and other Laws affecting the enforcement of creditors’ rights
generally and subject to the qualification that equitable remedies may only be granted in the discretion of a court of competent jurisdiction;
|
(c) |
None of the execution and delivery by either of Parent or Purchaser of this Agreement or the completion of the transactions contemplated hereby or the
compliance by Parent or Purchaser with their respective obligations hereunder will violate, contravene, result in any breach of, or be in conflict with, or constitute a default under, require any consent to be obtained under, give rise
to any termination rights or payment obligation under, or create a state of facts which after notice or lapse of time or both would constitute a default under, any term or provision of: (i) any constating or governing documents, by-laws
or resolutions of Parent or Purchaser; (ii) any contract to which Parent or Purchaser is a party or by which Parent or Purchaser or any of the property or assets of Parent or Purchaser are bound; (iii) any judgment, decree, order or
award of any Governmental Entity; or (iv) any applicable Laws;
|
(d) |
There is no private or governmental action, suit, claim, arbitration, investigation or other proceeding in progress or pending before any Governmental Entity,
or, to the knowledge of Parent or Purchaser, threatened against Parent or Purchaser or any of its affiliates or any of their directors or officers (in their capacities as such) that, individually or in the aggregate, would adversely
affect in any manner Parent’s ability or Purchaser’s ability to enter into this Agreement or perform its obligations under this
Agreement. There is no judgment, decree or order against Parent or Purchaser or any of its affiliates or any of their directors or officers (in their capacities as such) that would prevent, enjoin, alter, delay or adversely affect in
any manner the ability of Parent or Purchaser to enter into this Agreement or to perform its obligations under this Agreement; and
|
(e) |
No consent, waiver, approval, authorization, Order, exemption, registration, licence or declaration of or by, or filing with, or notification to any
Governmental Entity which has not been made or obtained is required to be made or obtained by Parent or Purchaser in connection with the execution and delivery by Purchaser and enforcement against Parent or Purchaser of this Agreement
or the consummation of any transactions provided for herein, except for, in either case, for those specifically set forth in the Arrangement Agreement with respect to the consummation of the Arrangement.
|
3.1 |
Covenants of the Shareholder
|
(a) |
The Shareholder hereby covenants that from the date of this Agreement until the earlier of the termination of this Agreement in accordance with its
terms and the Effective Time (such earlier time being the “Expiry Time”), the Shareholder shall not:
|
(i) |
sell, transfer, gift, assign, convey, pledge, hypothecate, encumber, option, grant a security interest in or otherwise dispose of any right or interest in (any
such event, a “Transfer”) any of the Subject Shares, or enter into any agreement, arrangement or understanding in connection therewith,
without
|
having first obtained the prior written consent of Purchaser, other than pursuant to the Arrangement Agreement or Investment Agreement; or
|
(ii) |
other than as set forth herein, grant any proxies or powers of attorney, deposit any Subject Shares into a voting trust, in any way transfer any of the voting
rights associated with any of the Subject Shares, or enter into a voting agreement understanding or arrangement with respect to (A) the right to vote, (B) the calling of meetings of Company Shareholders or (C) the giving of any consents
or approvals of any kind with respect to any Subject Shares.
|
(b) |
The Shareholder hereby covenants, undertakes and agrees from time to time, until the Expiry Time to vote (or cause to be voted) all the Subject Shares at any
meeting of any of the securityholders of the Company at which the Shareholder is entitled to vote, including without limitation the Company Meeting, and in any action by written consent of the securityholders of the Company:
|
(i) |
in favour of the approval, consent, ratification and adoption of the Arrangement Resolution and the transactions contemplated by the Arrangement Agreement
(and any actions required for the consummation of the transactions contemplated by the Arrangement Agreement); and
|
(ii) |
against any:
|
(A) |
Acquisition Proposal;
|
(B) |
action that would reasonably be expected to impede, delay, interfere with, or discourage the transactions contemplated by the Arrangement Agreement; and
|
(C) |
action that would result in a breach of any covenant or other obligation of the Company in the Arrangement Agreement.
|
(c) |
The Shareholder hereby consents to:
|
(i) |
details of this Agreement being set out in any information circular and court documents produced by the Company, Purchaser or any of their respective
affiliates in connection with the transactions contemplated by this Agreement and the Arrangement Agreement; and
|
(ii) |
this Agreement being made publicly available, including by filing on SEDAR and EDGAR, without redaction other than certain contact information set out in
Section 4.7 herein;
|
3.2 |
Covenants of Parent and Purchaser
|
(a) |
Each of Parent and Purchaser hereby covenant to consummate the transactions contemplated by the Arrangement Agreement, in accordance with the terms thereof
and subject to the termination rights therein.
|
(b) |
Each of Parent and Purchaser hereby covenant to use its reasonable commercial efforts to assist the Company in effecting the Arrangement and to successfully
complete the Arrangement in the manner contemplated by this Agreement and the Arrangement Agreement.
|
4.1 |
Termination
|
(a) |
the agreement in writing of Parent, Purchaser and the
Shareholder;
|
(b) |
the termination of the Arrangement Agreement in accordance with its terms; and
|
(c) |
the termination of the Investment Agreement in accordance with its terms.
|
4.2 |
Effect of Termination
|
4.3 |
Time of the Essence
|
4.4 |
Equitable Relief; Specific Performance
|
4.5 |
Waiver; Amendment
|
4.6 |
Entire Agreement
|
4.7 |
Notices
|
(a) |
if to Purchaser or Parent:
|
(b) |
if to the Shareholder:
|
4.8 |
Severability
|
4.9 |
Successors and Assigns
|
4.10 |
Further Assurances
|
4.11 |
Execution and Delivery
|
CUMMINS INC.
|
|||
By:
|
/s/ Thaddeus B. Ewald |
||
Name: Thaddeus B. Ewald
|
|||
Title: Vice President – Corporate Strategy and Business Development
|
|||
ATLANTIS ACQUISITIONCO CANADA CORPORATION
|
|||
By:
|
/s/ Thaddeus B. Ewald |
||
Name: Thaddeus B. Ewald
|
|||
Title: Director
|
|||
THE HYDROGEN COMPANY
|
|||
By:
|
/s/ Pierre Etienne Franc |
||
Name: Pierre Etienne Franc
|
|||
Title: Directeur General
|