As Filed
with the Securities and Exchange Commission on November 9, 2009
Registration No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM F-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT
OF 1933
HYDROGENICS
CORPORATION
CORPORATION
HYDROGÉNIQUE
(Exact
name of Registrant as specified in its charter)
Canada
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3629
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Not
Applicable
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(Province or other
jurisdiction of
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(Primary Standard
Industrial
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(I.R.S. Employer
Identification Number)
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incorporation or
organization)
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Classification Code
Number)
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5985
McLaughlin Road, Mississauga, Ontario, Canada L5R 1B8, (905) 361-3633
(Address and telephone
number of Registrants principal executive offices)
CT
Corporation System, 111 Eighth Avenue, New York, New York 10011, (212) 894-8400
(Name, address, and
telephone number of agent for service in the United States)
Copies
to:
Lawrence
E. Davis
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Andrew
J. Beck, Esq.
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Chief Financial Officer
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Torys LLP
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Hydrogenics Corporation
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237 Park Avenue
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5985 McLaughlin Road
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New York, New York
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Mississauga, Ontario,
Canada
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10017
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L5R 1B8
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(212) 880-6000
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(905) 361-3633
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Approximate
date of commencement of proposed sale of the securities to the public:
From time to time on or after the
effective date of this Registration Statement.
If the only securities being
registered on this form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box.
o
If any of the securities
being registered on this Form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the Securities Act of 1933, please check
the following box.
x
If this form is filed to
register additional securities for an offering pursuant to Rule 462(b) under
the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
o
If this Form is a
post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
o
If this Form is a
registration statement pursuant to General Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing
with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box.
o
If this Form is a
post-effective amendment to a registration statement filed pursuant to
General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities
Act, check the following box.
o
CALCULATION OF REGISTRATION FEE
Title
of each class of
securities to be registered
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Amount
to
be registered (1)(2)
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Proposed
maximum
offering price
per Security (2) (3)
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Proposed
maximum
aggregate
offering price (2) (3)
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Amount
of
registration fee
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Common Shares
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Preferred Shares
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Debt Securities
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Subscription Receipts
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Warrants
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Share Purchase
Contracts
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Units
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Total
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US $16,000,000
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100%
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US $16,000,000
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US $892.80
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(1)
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There are being registered under this registration
statement such indeterminate number of Common Shares, Preferred Shares, Debt
Securities, Subscription Receipts, Warrants, Share Purchase Contracts, and
Units of the Registrant as shall have an aggregate initial offering price not
to exceed US $16,000,000. Any securities registered by this registration
statement may be sold separately or as units with other securities registered
under this registration statement. The proposed maximum initial offering
price per security will be determined, from time to time, by the Registrant
in connection with the sale of the securities under this registration
statement.
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(2)
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In United States dollars or the equivalent thereof
in Canadian dollars.
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(3)
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Estimated solely for the purpose of calculating the
amount of the registration fee pursuant to Rule 457(o) of the
Securities Act of 1933.
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The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission acting pursuant to said Section 8(a),
may determine.
PART I
A
copy of this preliminary short form base shelf prospectus has been filed with
the securities regulatory authorities in each of the provinces of Canada,
except Québec, but has not yet become final for the purpose of the sale of
securities. Information contained in this preliminary short form base shelf
prospectus may not be complete and may have to be amended. The securities may
not be sold until a receipt for the short form prospectus is obtained from the
securities regulatory authorities.
This
preliminary short form base shelf prospectus has been filed under legislation
in each of the provinces of Canada, except Québec, that permits certain
information about these securities to be determined after this prospectus has
become final and that permits the omission from this prospectus of that
information. The legislation requires the delivery to purchasers of a
prospectus supplement containing the omitted information within a specified
period of time after agreeing to purchase any of these securities.
No securities regulatory authority has expressed an
opinion about these securities and it is an offence to claim otherwise.
This
preliminary short form base shelf prospectus constitutes a public offering of
these securities only in those jurisdictions where they may be lawfully offered
for sale and therein only by persons permitted to sell such securities.
Information has been incorporated by reference in this
prospectus from documents filed with securities commissions or similar
authorities in Canada.
Copies of the documents incorporated herein
by reference may be obtained on request without charge from the office of our
Chief Financial Officer at 5985 McLaughlin Road, Mississauga, Ontario, Canada
L5R 1B8, (905) 361-3600, and are also available electronically at
www.sedar.com.
PRELIMINARY SHORT FORM BASE
SHELF PROSPECTUS
NEW ISSUE AND/OR
SECONDARY OFFERING
November
9, 20
09
HYDROGENICS
CORPORATION
US$16,000,000
Common Shares
Preferred Shares
Debt Securities
Subscription Receipts
Warrants
Share Purchase Contracts
Units
We may offer from time to
time, during the 25 month period that this prospectus, including any amendments
hereto, remains effective, up to US$16,000,000 of the securities listed above
in one or more series or issuances and their total offering price, in the
aggregate, will not exceed US$16,000,000. Our securities may be offered
separately or together, in amounts, at prices and on terms to be determined
based on market conditions and set forth in an accompanying shelf prospectus supplement.
We will provide the
specific terms of any securities we actually offer in supplements to this
prospectus. You should read this prospectus and any applicable prospectus
supplement carefully before you invest. This prospectus may not be used to offer
securities unless accompanied by a prospectus supplement. Any net proceeds we
expect to receive from the issue of our securities will be set forth in a
prospectus supplement.
We will not offer
exchangeable preferred shares, warrants, share purchase contracts, or units
comprised of one or more of the foregoing for sale separately to any member of
the public in Canada unless the offering is in connection with and forms part
of the consideration for an acquisition or merger transaction or unless the
prospectus supplement containing the specific terms of the exchangeable
preferred shares, warrants, share purchase contracts, or units comprised of one
or more of the foregoing, as the case may be, to be offered separately is first
approved for filing by the securities commissions or similar regulatory
authorities in each of
the provinces of
Canada where the exchangeable preferred shares, warrants, share purchase
contracts, or units comprised of one or more of the foregoing, as the case may
be, will be offered for sale.
This prospectus does not
qualify for issuance debt securities in respect of which the payment of
principal and/or interest may be determined, in whole or in part, by reference
to one or more underlying interests including, for example, an equity or debt
security, a statistical measure of economic or financial performance including,
but not limited to, any currency, consumer price or mortgage index, or the
price or value of one or more commodities, indices or other items, or any other
item or formula, or any combination or basket of the foregoing items.
Our outstanding common
shares are quoted on the Nasdaq Global Market (
Nasdaq
)
under the symbol HYGS and listed on the Toronto Stock Exchange (the
TSX
) under the symbol HYG .
The aggregate market
value of our outstanding common stock held by non-affiliates is US$49,070,475
based on 92,465,666 shares outstanding as of November 3, 2009, of which
76,672,618 shares are held by non-affiliates, at a per share price of US$0.64
based on the closing sale price of our common stock on September 28, 2009.
In addition, as of the date hereof, we have not offered any securities pursuant
to General Instruction I.B.5 of Form F-3 during the prior 12 calendar
month period that ends on and includes the date of this prospectus.
On October 27, 2009,
we completed a non-dilutive financing transaction with our predecessor, as
further described in the section of this prospectus entitled Our Business
Recent Developments APIF Transaction.
Among other things, the transaction involved the transfer of
substantially all of the assets, liabilities and operations of our predecessor
to us, and the redemption of our predecessors common shares for our common
shares on a one-for-one basis and accounted for using a continuity of interests
method. As a result, for financial
statement purposes, we are considered to continue the existing business of our
predecessor and the proceeds that we received in connection with this
transaction are accounted for as a realization of our predecessors tax
assets. Investors should refer to the
section of this prospectus entitled Our Business Recent Developments APIF
Transaction and the management proxy circular of our predecessor dated June 25,
2009 in connection with this transaction, and incorporated by reference in this
prospectus.
Investing in our securities
involves risks. See Risk Factors beginning on page 6 of this prospectus.
Our head and registered
office is at 5985 McLaughlin Road, Mississauga, Ontario, Canada L5R 1B8.
We are
permitted to prepare this prospectus in accordance with Canadian disclosure
requirements, which are different from those of the United States. We prepare
our financial statements in accordance with Canadian generally accepted
accounting principles (Canadian GAAP), and are subject to Canadian auditing
and auditor independence standards. Our financial statements may not be
comparable to financial statements of U.S. companies. Information regarding the impact upon our
financial statements of significant differences between Canadian GAAP and U.S.
generally accepting accounting principles (U.S. GAAP) is contained in the
notes to our consolidated financial statements incorporated by reference in
this prospectus.
Owning
the securities may subject you to tax consequences both in the United States
and Canada. This prospectus or any applicable prospectus supplement may not
describe these tax consequences fully. You should read the tax discussion in
any applicable prospectus supplement.
Your
ability to enforce civil liabilities under the U.S. federal securities laws may
be affected adversely because we are incorporated in Canada, most of our
officers and directors and certain of the experts named in this prospectus are
Canadian residents, and many of our assets are located in Canada.
NEITHER
THE U.S. SECURITIES AND EXCHANGE COMMISSION (SEC) NOR ANY STATE OR PROVINCIAL
SECURITIES REGULATOR HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
2
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
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3
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ENFORCEABILITY OF
CERTAIN CIVIL LIABILITIES
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4
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PRESENTATION OF OUR
FINANCIAL INFORMATION
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4
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EXCHANGE RATE DATA
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4
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FORWARD-LOOKING
STATEMENTS
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5
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RISK FACTORS
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6
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THE COMPANY
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22
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OUR DIRECTORS AND
EXECUTIVE OFFICERS
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26
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PRICE RANGE AND TRADING
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29
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USE OF PROCEEDS
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31
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EXPENSES OF ISSUANCE
AND DISTRIBUTION
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31
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RATIO OF EARNINGS TO
FIXED CHARGES
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31
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DESCRIPTION OF COMMON
SHARES AND PREFERRED SHARES
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32
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DESCRIPTION OF DEBT
SECURITIES
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34
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DESCRIPTION OF
SUBSCRIPTION RECEIPTS
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34
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DESCRIPTION OF WARRANTS
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35
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DESCRIPTION OF SHARE
PURCHASE CONTRACTS
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37
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DESCRIPTION OF UNITS
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38
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PLAN OF DISTRIBUTION
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40
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SELLING SECURITYHOLDERS
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41
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CERTAIN INCOME TAX CONSIDERATIONS
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41
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DOCUMENTS INCORPORATED
BY REFERENCE
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42
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LEGAL MATTERS
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44
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EXPERTS
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44
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AUDITORS, TRANSFER
AGENTS AND REGISTRARS
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44
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STATUTORY RIGHTS OF WITHDRAWAL AND RESCISSION
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44
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You should rely only on the
information contained in or incorporated by reference into this prospectus or
any prospectus supplement. References to this prospectus include documents
incorporated by reference therein. See Documents Incorporated by Reference at
page 42 of this prospectus. The
information in or incorporated by reference into this prospectus is current
only as of its date. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to offer these securities.
ABOUT THIS PROSPECTUS
In this prospectus,
unless the context otherwise requires, the terms Hydrogenics, Company, we,
us and our refer to Hydrogenics Corporation and its consolidated
subsidiaries and, where the context requires, includes our predecessor and its
consolidated subsidiaries prior to October 27, 2009.
Except where otherwise
indicated, all dollar amounts are expressed in U.S. dollars, references to US$
and dollars are to U.S. dollars, and references to Cdn$ are to Canadian
dollars.
3
ENFORCEABILITY OF CERTAIN CIVIL
LIABILITIES
We are a corporation
organized under the laws of Canada. Most
of our directors and officers, as well as certain of the experts named in this
prospectus, are residents of Canada and all or a substantial portion of our
assets and the assets of such persons may be located outside the United States.
As a result, it may be difficult for U.S. investors to effect service of
process within the United States upon our directors or officers, or to realize
in the United States upon judgments of courts of the United States predicated
upon civil liability of such directors or officers under U.S. federal
securities laws. We have been advised by Torys LLP that a judgment of a U.S.
court predicated solely upon civil liability under such laws would probably be
enforceable in Canada if the U.S. court in which the judgment was obtained had
a basis for jurisdiction in the matter that was recognized by a Canadian court
for such purposes. We have also been advised by such counsel, however, that
there is substantial doubt whether an action could be brought in Canada in the
first instance on the basis of liability predicated solely upon such laws.
PRESENTATION OF OUR FINANCIAL
INFORMATION
Financial information in
this prospectus has been prepared in accordance with generally accepted
accounting principles in Canada, or Canadian GAAP, which differ from generally
accepted accounting principles in the United States, or U.S. GAAP. For a
discussion of the material differences between Canadian GAAP and U.S. GAAP as
they relate to our financial statements, see note 23 to our revised audited
consolidated financial statements for the year ended December 31, 2008
incorporated by reference in this prospectus, and note 13 to our unaudited
consolidated financial statements for the nine months ended September 30,
2009 incorporated by reference in this prospectus.
EXCHANGE RATE DATA
The following table sets
forth, for each period indicated, the low and high exchange rates for Canadian
dollars expressed in United States dollars, the exchange rate at the end of
such period and the average of such exchange rates for each day during such
period, based on the noon rate of exchange as reported by the Bank of Canada
for the conversion of Canadian dollars into United States dollars:
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Year Ended December 31,
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Nine Months
Ended
September 30,
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2004
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2005
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2006
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2007
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2008
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2008
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2009
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Low
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0.7159
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0.7872
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0.8528
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0.8437
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0.7711
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0.9263
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0.7692
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High
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0.8493
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0.8690
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0.9099
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1.0905
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1.0289
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1.0289
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0.9422
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Period End
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0.8308
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0.8577
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0.8581
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1.0120
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0.8166
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0.9435
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0.9327
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Average
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0.7697
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0.8259
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0.8820
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0.9348
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0.9441
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0.9824
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0.8577
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On November 6, 2009,
the noon buying rate was Cdn$1.00 = US$0.9328.
4
FORWARD-LOOKING STATEMENTS
Certain statements
included and incorporated by reference in this prospectus constitute forward-looking
information, within the meaning of applicable Canadian securities laws and forward-looking
statements within the meaning of the United States Private Securities
Litigation Reform Act of 1995 (collectively referred to herein as forward-looking
statements). Forward- looking statements can be identified by the use of
words, such as plans, expects, or is expected, budget, scheduled, estimates,
forecasts, intends, anticipates, or believes or variations of such
words and phrases or state that certain actions, events or results may, could,
would, might or will be taken, occur or be achieved. These
forward-looking statements relate to, among other things, our future results,
levels of activity, performance, goals or achievements or other future events.
These forward-looking statements are based on current expectations and various
assumptions and analyses made by us in light of our experience and our
perceptions of historical trends, current conditions and expected future
developments and other factors that we believe are appropriate in the
circumstances. These forward-looking statements involve known and unknown
risks, uncertainties and other factors that may cause actual results or events
to differ materially from those anticipated in our forward-looking statements.
These risks,
uncertainties and factors include, but are not limited to: our inability to
increase our revenues or raise additional funding to continue operations,
execute our business plan, or to grow our business; inability to address a
sustained or broad economic recession, and its impact on our business, results
of operations and financial condition; our limited operating history; inability
to implement our business strategy; fluctuations in our quarterly results;
failure to maintain our customer base that generates the majority of our
revenues; currency fluctuations; failure to maintain sufficient insurance
coverage; changes in value of our identifiable intangible assets and goodwill;
failure of a significant market to develop for our products; failure of
hydrogen being readily available on a cost-effective basis; changes in
government policies and regulations; failure of uniform codes and standards for
hydrogen-fuelled vehicles and related infrastructure to develop; failure to
compete with other developers and manufacturers of products in our industry;
failure to compete with developers and manufacturers of traditional and
alternative technologies; failure to develop partnerships with original
equipment manufacturers, governments, systems integrators and other third
parties; inability to obtain sufficient materials and components for our
products from suppliers; failure to manage expansion of our operations; failure
to manage foreign sales and operations; failure to recruit, train and retain
key management personnel; inability to integrate acquisitions; failure to
develop adequate manufacturing processes and capabilities; failure to complete
the development of commercially viable products; failure to produce
cost-competitive products; failure or delay in field testing of our products;
failure to produce products free of defects or errors; inability to adapt to
technological advances or new codes and standards; failure to protect our
intellectual property; our involvement in intellectual property litigation;
exposure to product liability claims; failure to meet the listing requirements
of Nasdaq; implementation of a share consolidation of our common shares;
failure to meet rules regarding passive foreign investment companies;
actions of our significant and principal shareholders; dilution as a result of
significant issuances of our common shares and preferred shares; inability of
U.S. investors to enforce U.S. civil liability judgments against us; volatility
of our common share price; and dilution as a result of the exercise of
options. Actual results and developments
are likely to differ, and may differ materially, from those expressed or
implied in the forward-looking statements contained herein and as such, you are
cautioned not to place undue reliance on these forward-looking statements. Many
of these risks are beyond our control and current expectation and
knowledge. Therefore, should one or more
of these risks materialize, or should assumptions underlying the
forward-looking statements prove incorrect, our actual results and performance
may vary significantly from what we currently foresee. Accordingly, we warn investors to exercise
caution when considering any statements herein containing forward-looking
statements and to not place undue reliance on such statements and underlying
assumptions. We are under no obligation
(and expressly disclaim any such obligation) to update or alter statements
containing forward-looking statements whether as a result of new information,
future events or otherwise, except as required by law. See Risk Factors beginning on page 6 of this prospectus for a further discussion
of these risks, uncertainties and factors.
5
RISK FACTORS
An investment in our securities
involves risk. You should carefully consider the following risk factors, as
well as the other information contained in and incorporated by reference into
this prospectus, before deciding whether to invest in our securities. Any of
the following risks could materially adversely affect our business, financial
condition or results of operations. Additional risks and uncertainties not
currently known to us or that we currently deem to be immaterial may also materially
and adversely affect our business, financial condition or results of
operations.
Risk Factors Related to Our Financial Condition
If
we are unsuccessful in increasing our revenues and raising additional funding,
we may possibly cease to continue as we currently do.
Although our interim
consolidated financial statements for the three and nine months ended September 30,
2009 have been prepared on a going concern basis, which contemplates the
realization of assets and liquidation of liabilities during the normal course
of operations, our ability to continue as a going concern is dependent on the
successful execution of the Companys business plan, which includes an increase
in revenue and additional funding to be provided by potential investors as well
as non-traditional sources of financing. We have disclosed in our financial
statements for the three and nine months ended September 30, 2009 that
there are material
uncertainties
that cast substantial doubt upon our ability to continue as a going concern.
We have sustained losses
and negative cash flows from operations since our inception. We expect that
this will continue throughout 2009 and 2010. If we do not raise additional
capital during 2010, we do not expect our operations to generate sufficient cash
flow to fund our obligations as they come due.
Additional funding may be
in the form of debt or equity or a hybrid instrument depending on the needs of
the investor. Given the prevailing global economic and credit market
conditions, we may not be able to raise additional cash resources through these
traditional sources of financing. Although we are also pursuing non-traditional
sources of financing, the global credit market crisis has also adversely
affected the ability of potential parties to pursue such transactions. We do
not believe that the ability to access capital markets or these adverse
conditions are likely to improve significantly in the near future. Accordingly,
as a result of the foregoing, we continue to review sources of financing, a
combination of operating and related initiatives, as well as other alternatives
to enhance shareholder value, including, but not limited to, alliances with
strategic partners, private and public debt or equity financing alternatives,
the sale or licensing of our technology or a substantial reorganization of our
business.
There can be no
assurances that we will achieve profitability or positive cash flows or be able
to obtain additional funding or that, if obtained, they will be sufficient, or
whether any other initiatives will be successful, such that we may continue as
a going concern. There are material uncertainties related to certain adverse
conditions and events that cast significant doubt on our ability to remain a
going concern.
Our
inability to generate sufficient cash flows, raise additional capital and
actively manage our liquidity may impair our ability to execute our business
plan, and result in our reducing or eliminating product development and
commercialization efforts, reduce our sales and marketing efforts, and having
to forego attractive business opportunities.
At September 30,
2009, we had approximately US$7.4 million of cash and cash equivalents and
restricted cash (October 27, 2009 - US$15.4 million, after giving effect
to our non-dilutive financing transaction involving Algonquin Power Income
Fund. See Our Business Recent Developments APIF Transaction). The
restricted cash of US$1.5 million is held as partial security for standby
letters of credit and letters of finance. There are uncertainties related to
the timing and use of our cash resources and working capital requirements.
These uncertainties include, among other things, the timing and volume of
commercial sales and associated gross margins of our existing products and the
development of markets for, and customer acceptance of new products. Due to
these
6
and other factors,
many of which are outside of our control, we may not be able to accurately
predict our necessary cash expenditures or obtain financing in a timely manner
to cover any shortfalls.
If we are unable to
generate sufficient cash flows or obtain adequate additional financing, which
given the current global economy and credit markets is challenging, we may be
unable to respond to the actions of our competitors or we may be prevented from
executing our business plan, or conducting all or a portion of our planned
operations. In particular, the development and commercialization of our
products could be delayed or discontinued if we are unable to fund our research
and product development activities or the development of our manufacturing
capabilities. In addition, we may be forced to reduce our sales and marketing
efforts or forego attractive business opportunities.
A
sustained and broad economic recession could continue to have a negative impact
on our business, results of operations and consolidated financial condition, or
our ability to accurately forecast our results, and it may cause a number of
the risks that we currently face to increase in likelihood, magnitude and
duration.
Macro-level changes in
the global economy began to affect our business in the fourth quarter of 2008.
Operationally, we experienced a delay in closing orders. Financially, we
experienced more challenging conditions as a result of weaker capital markets
worldwide and anticipate these changes may adversely alter our ability to raise
capital on favourable terms and could change the terms of our credit facility.
The condition of the
current global economy and credit markets affects our outlook in three distinct
ways. Firstly, our products depend, to some degree, on general world economic
conditions and activity. If the current condition of the economy results in a
sustained broad economic recession, demand for our products is likely to
decline. Secondly, the current economic and credit climate could adversely
affect our ability to conduct normal day-to-day selling activities which depend
on the granting of short-term credit to a wide variety of purchasers and
particularly the corresponding need of those purchasers. Thirdly, those
purchasers have a corresponding need to finance purchases by accessing their
own lines of credit. If the current condition of the economy is not resolved in
a manner that will provide access to credit to potential purchasers of our
products, our business will likely suffer as a result.
With a sustained or
expanding economic downturn, we expect we will continue to experience
significant difficulties on a number of fronts, depending on the duration and
severity of the downturn. As a result, we may face new risks as yet
unidentified, and a number of risks which we ordinarily face and which are
further described herein may increase in likelihood, magnitude and duration.
These risks include but are not limited to deferrals or reductions of customer
orders, potential deterioration of our customers ability to finance purchases,
reduced revenue, further deterioration in our cash balances and liquidity due
to foreign exchange impacts, and an inability to access capital markets. The
financial crisis and economic downturn will also reduce our ability to
accurately forecast our performance, results or cash position.
We
have a limited operating history, and because our mix of revenues in the recent
past does not reflect our current business strategy, it may be difficult to
assess our business and future prospects.
We commenced operation of
our fuel cell test business in 1996 and since that time we have been engaged
principally in the manufacture and sale of fuel cell test and diagnostic
equipment, the provision of related engineering and testing services, and
research and product development relating to fuel cell systems and subsystems.
For the three months ended September 30, 2009, we derived US$2.5 million,
or 71%, of revenues from our sales of hydrogen generation products and
services, and US$1.0 million, or 29%, of our revenues from sales of power
products and services. For the nine months ended September 30, 2009, we
derived US$10.2 million, or 69%, of revenues from our sales of hydrogen
generation products and services and US$4.5 million, or 31%, of our revenues
from sales of power products and services. For the year ended December 31,
2008, we derived US$31.2 million, or 79%, of revenues from our sales of
hydrogen generation products and services, US$5.6 million, or 15%, of our
revenues from sales of power products and services, and US$2.5 million, or 6%,
of our revenues from sales of fuel cell test equipment and services. For the
year ended December 31, 2007, we derived US$19.6 million, or 52%, of
revenues from our sales of hydrogen generation products and services, US$6.1
million, or 16%, of our revenues from sales of power products and services, and
US$12.3 million, or 32%, of our revenues from sales of fuel cell test equipment
and services. For the year ended December 31, 2006, we derived US$12.0
million, or 40%, of our
7
revenues from
sales of hydrogen generation products and services, US$7.0 million, or 23%, of
our revenues from sales of power products and services, and US$11.1 million, or
37%, of our revenues from sales of fuel cell test equipment and services. On November 7,
2007, we announced our decision to commence an orderly windup of our fuel cell
test products design, development and manufacturing business, which is
anticipated to be completed by the end of 2009. Our current business strategy
is to develop, manufacture and sell fuel cell power products in larger
quantities. In addition, following our acquisition of Stuart Energy Systems
Corporation in January 2005, a significant part of our business now
relates to hydrogen generation products. Because we have made limited sales of
fuel cell power products to date and have added a new revenue stream with our
hydrogen generation business, our historical operating data may be of limited
value in evaluating our future prospects.
Because
we expect to continue to incur net losses, we may not be able to implement our
business strategy, and the price of our common shares may decline.
We have not generated
positive net income since our inception. Our current business strategy is to
develop a portfolio of hydrogen and fuel cell products with market leadership
positions for each product. In so doing, we will continue to incur significant
expenditures for general administrative activities, including sales and
marketing and research and development. As a result of these costs, we will
need to generate and sustain significantly higher revenues and positive gross
margins to achieve and sustain profitability. We incurred net losses for the
three and nine months ended September 30, 2009 of US$5.4 million and
US$15.4 million, respectively, a net loss of US$14.2 million for the
year ended December 31, 2008, a net loss of US$28.1 million for the year
ended December 31, 2007, and a net loss of US$130.8 million for the year
ended December 31, 2006. Our accumulated deficit as at September 30,
2009 was US$306.9 million, and at December 31, 2008 was US$291.4 million,
as at December 31, 2007 was US$277.1 million and as at December 31,
2006 was US$249 million.
We expect to incur
significant operating expenses over the next several years. As a result, we
expect to incur further losses in 2009 and 2010, and we may never achieve
profitability. Accordingly, we may not be able to implement our business
strategy, and the price of our common shares may decline.
Our
quarterly operating results are likely to fluctuate significantly and may fail
to meet the expectations of securities analysts and investors, and cause the
price of our common shares to decline.
Our quarterly revenues
and operating results have varied significantly in the past and are likely to
vary in the future. These quarterly fluctuations in our operating performance
result from the length of time between our first contact with a customer and
the recognition of revenue from sales to that customer. Our products are highly
engineered and many are still in development stages; therefore, the length of time
between approaching a customer and delivering our products to that customer can
span many quarterly periods. In many cases a customers decision to buy our
products and services may require the customer to change its established
business practices and to conduct its business in new ways. As a result, we
must educate customers on the use and benefits of our products and services.
This can require us to commit significant time and resources without
necessarily generating any revenues. Many potential customers may wish to enter
into test arrangements with us in order to use our products and services on a
trial basis. The success of these trials may determine whether or not the
potential customer purchases our products or services on a commercial basis.
Potential customers may also need to obtain approval at a number of management
levels and one or more regulatory approvals. This may delay a decision to
purchase our products.
The length and
variability of the sales cycles for our products make it difficult to forecast
accurately the timing and amount of specific sales and corresponding revenue
recognition. The delay or failure to complete one or more large sales
transactions could significantly reduce our revenues for a particular quarter.
We may expend substantial funds and management effort during our sales cycle
with no assurance that we will successfully sell our products. As a result, our
quarterly operating results are likely to fluctuate significantly and we may
fail to meet the expectations of securities analysts and investors, and the
price of our common shares may decline.
8
We
currently depend on a relatively limited number of customers for a majority of
our revenues and a decrease in revenue from these customers could materially
adversely affect our business, consolidated financial condition and results of
operations.
To date, a relatively
limited number of customers have accounted for a majority of our revenues and
we expect they will continue to do so for the foreseeable future. Our four
largest customers accounted for 61% and 36% of revenues for the three and nine
months ended September 30, 2009, 35% of our revenues for the year ended December 31,
2008, 26% of our revenues for the year
ended December 31, 2007, and 31% of our revenues for the year ended December 31,
2006. The identities of some of our largest customers have changed from year to
year. Our arrangements with these customers are generally non-exclusive, have
no volume commitments and are often on a purchase-order basis. We cannot be
certain that customers who have accounted for significant revenue in past
periods will continue to purchase our products and generate revenues.
Accordingly, our revenue and results of operations may vary from period to
period. We are also subject to credit risk associated with the concentration of
our accounts receivable from these significant customers. If one or more of
these significant customers were to cease doing business with us, significantly
reduce or delay purchases from us, or fail to pay on a timely basis, our
business, consolidated financial condition and results of operations could be
materially adversely affected.
Our
operating results may be subject to currency fluctuation.
Our monetary assets and
liabilities denominated in currencies other than the US dollar will give rise
to a foreign currency gain or loss reflected in earnings. To the extent that
the Canadian dollar or the euro strengthens against the U.S. dollar, we may
incur net foreign exchange losses on our net consolidated monetary asset
balance which is denominated in those currencies. Such losses would be included
in our financial results and, consequently, may have an adverse effect on our
share price.
As we currently have
operations based in Canada and Europe, a significant portion of our expenses
are in Canadian dollars and euros. However, a significant part of our revenues
are currently generated in U.S. dollars and euros, and we expect that this will
continue for the foreseeable future. In addition, we may be required to finance
our European operations by exchanging Canadian dollars or U.S. dollars into
euros. The exchange rates between the Canadian dollar, the U.S. dollar and the
euro are subject to daily fluctuations in the currency markets and these
fluctuations in market exchange rates are expected to continue in the future.
Such fluctuations affect both our consolidated revenues as well as our
consolidated costs. If the value of the US dollar weakens against the Canadian
dollar or the euro, the profit margin on our products may be reduced. Also,
changes in foreign exchange rates may affect the relative costs of operations
and prices at which we and our foreign competitors sell products in the same
market. We currently have limited currency hedging through financial
instruments. We carry a portion of our short-term investments in Canadian
dollars and euros.
Our
insurance may not be sufficient.
We carry insurance that
we consider adequate considering the nature of the risks and costs of coverage.
We may not, however, be able to obtain insurance against certain risks or for
certain products or other resources located from time to time in certain areas
of the world. We are not fully insured against all possible risks, nor are all
such risks insurable. Thus, although we maintain insurance coverage, such
coverage may not be adequate.
Certain
external factors may affect the value of identifiable intangible assets and
goodwill, which may require us to recognize an impairment charge.
Identifiable intangible
assets and goodwill arising from our acquisition of Stuart Energy Systems
Corporation in 2005 comprise approximately 15.1% of our total assets as at September 30,
2009, 10.6% of our total assets as at December 31, 2008 and 8% of our total
assets as at December 31, 2007. Economic, market, legal, regulatory,
competitive, customer, contractual and other factors may affect the value of
identifiable intangible assets and goodwill. If any of these factors impair the
value of these assets, accounting rules require us to reduce their
carrying value and recognize an impairment charge. This would reduce our
reported assets and earnings in the year the impairment charge is recognized.
9
Risk Factors Related to Our Business and Industry
Significant
markets for fuel cell and other hydrogen energy products may never develop or
may develop more slowly than we anticipate, which would significantly harm our
revenues and may cause us to be unable to recover the losses we have incurred
and expect to incur in the development of our products.
Significant markets may
never develop for fuel cell and other hydrogen energy products or they may
develop more slowly than we anticipate. Any such delay or failure would
significantly harm our revenues and we may be unable to recover the losses we
have incurred and expect to continue to incur in the development of our
products. If this were to occur, we may never achieve profitability and our
business could fail. Fuel cell and other hydrogen energy products represent an
emerging market, and whether or not end-users will want to use them may be
affected by many factors, some of which are beyond our control, including:
·
the
emergence of more competitive technologies and products, including other
environmentally clean technologies and products that could render our products
obsolete;
·
the
future cost of hydrogen and other fuels used by our fuel cell systems;
·
the
future cost of the membrane electrode assembly used in our fuel cell systems;
·
the
future cost of platinum group metals, a key catalyst used in our fuel cell and
hydrogen generation systems;
·
the
regulatory requirements of agencies, including the development of uniform codes
and standards for fuel cell products, hydrogen refueling infrastructure and
other hydrogen energy products;
·
government
support by way of legislation, tax incentives, policies or otherwise, of fuel
cell technology, hydrogen storage technology and hydrogen refueling technology;
·
the
manufacturing and supply costs for fuel cell components and systems;
·
the
perceptions of consumers regarding the safety of our products;
·
the
willingness of consumers to try new technologies;
·
the
continued development and improvement of existing power technologies; and
·
the
future cost of fuels used in existing technologies.
Hydrogen
may not be readily available on a cost-effective basis, in which case our fuel
cell products may be unable to compete with existing power sources, and our
revenues and results of operations would be materially adversely affected.
If our fuel cell product
customers are not able to obtain hydrogen on a cost-effective basis, we may be
unable to compete with existing power sources, and our revenues and results of
operations would be materially adversely affected. Our fuel cell products
require oxygen and hydrogen to operate. While ambient air can typically supply
the necessary oxygen, our fuel cells rely on hydrogen derived from water or
from fuels such as natural gas, propane, methanol and other petroleum products.
We manufacture and develop hydrogen generation systems called electrolyzers
that use electricity to separate water into its constituent parts of hydrogen
and oxygen. In addition, third parties are developing systems to extract, or
reform, hydrogen from fossil fuels. Significant growth in the use of
hydrogen-powered devices, particularly in the mobile market, may require the
development of an infrastructure to deliver the hydrogen. There is no guarantee
that such an infrastructure will be developed on a timely basis or at all. Even
if hydrogen is available for our products, if its price is such that
electricity or power produced by our systems would cost more than electricity
provided through other means, we may be unable to compete successfully.
10
Changes
in government policies and regulations could hurt the market for our products.
The fuel cell and
hydrogen industry is in its development phase and is not currently subject to
industry-specific government regulations in Canada, the European Union and the
United States as well as other jurisdictions, relating to matters such as
design, storage, transportation and installation of fuel cell systems and
hydrogen infrastructure products. However, given that the production of
electrical energy has typically been an area of significant government
regulation, we expect that we will encounter industry-specific government
regulations in the future in the jurisdictions and markets in which we operate.
For example, regulatory approvals or permits may be required for the design,
installation and operation of stationary fuel cell systems under federal, state
and provincial regulations governing electric utilities and mobile fuel cell
systems under federal, state and provincial emissions regulations affecting
automobile manufacturers. To the extent that there are delays in gaining such
regulatory approval, our development and growth may be constrained.
Furthermore, the inability of our potential customers to obtain a permit, or
the inconvenience often associated with the permit process, could harm demand
for fuel cell and other hydrogen products and, therefore, harm our business.
Our business will suffer
if environmental policies change and no longer encourage the development and
growth of clean power technologies. The interest by automobile manufacturers in
fuel cell technology has been driven in part by environmental laws and
regulations. There is no guarantee that these laws and regulations will not
change and any such changes could result in automobile manufacturers abandoning
their interest in fuel cell powered vehicles. In addition, if current laws and
regulations are not kept in force or if further environmental laws and regulations
are not adopted, demand for vehicular fuel cells may be limited.
The market for stationary
and portable energy-related products is influenced by federal, state and
provincial governmental regulations and policies concerning the electric
utility industry. Changes in regulatory standards or public policy could deter
further investment in the research and development of alternative energy
sources, including fuel cells and fuel cell products, and could result in a
significant reduction in the potential market demand for our products. We
cannot predict how changing government regulation and policies regarding the
electric utility industry will affect the market for stationary and portable
fuel cell systems.
Although the development
of alternative energy sources, and in particular fuel cells, has been
identified as a significant priority by many governments, we cannot be assured
that governments will not change their priorities or that any such change would
not materially affect our revenues and our business. If governments change
their laws and regulations such that the development of alternative energy
sources is no longer required or encouraged, the demand for alternative energy
sources such as our fuel cell products may be significantly reduced or delayed
and our sales would decline.
The
development of uniform codes and standards for hydrogen powered vehicles and
related hydrogen refueling infrastructure may not develop in a timely fashion,
if at all.
Uniform codes and
standards do not currently exist for fuel cell systems, fuel cell components,
hydrogen internal combustion engines or for the use of hydrogen as a vehicle
fuel. Establishment of appropriate codes and standards is a critical element to
allow fuel cell system developers, fuel cell component developers, hydrogen
internal combustion engine developers, hydrogen infrastructure companies and
hydrogen storage and handling companies to develop products that will be
accepted in the marketplace.
The development of
hydrogen standards is being undertaken by numerous organizations. Given the
number of organizations pursuing hydrogen codes and standards, it is not clear
whether universally accepted codes and standards will result in a timely
fashion, if at all.
11
We
currently face and will continue to face significant competition from other
developers and manufacturers of fuel cell power products and hydrogen
generation systems. If we are unable to compete successfully, we could
experience a loss of market share, reduced gross margins for our existing
products and a failure to achieve acceptance of our proposed products.
In our markets for
hydrogen generation systems, we compete with a number of companies that develop
and manufacture hydrogen generation products based on on-site water
electrolysis and/or reforming technologies. We also compete with suppliers of
hydrogen gas that deliver hydrogen to the customers site in tube trailers or
cylinders or by pipeline. In many cases, these suppliers have established
delivery infrastructure and customer relationships.
In the commercial
production of fuel cell power products, we compete with a number of companies
that currently have fuel cell and fuel cell system development programs. We
expect that several of these competitors will be able to deliver competing
products to certain markets before we do. While our strategy is the development
of fuel cell and hydrogen generation technologies for sale to end users,
original
equipment
manufacturers (
OEMs
), systems integrators,
governments and market channel partners, many of our competitors are developing
products specifically for use in particular markets. These competitors may be
more successful in penetrating their specific markets than we are. In addition,
an increase in the popularity of fuel cell power in particular market channels
may cause certain of our customers to develop and produce some or all of the
fuel cell technologies that we are developing.
Competition in the
markets for fuel cell power modules and hydrogen generation equipment is
significant and will likely persist and intensify over time. We compete
directly and indirectly with a number of companies that provide products and
services that are competitive with all, some or part of our products and related
services. Many of our existing and potential competitors have greater brand
name recognition and their products may enjoy greater initial market acceptance
among our potential customers. In addition, many of these competitors have
significantly greater financial, technical, sales, marketing, distribution,
service and other resources than we have and may also be better able to adapt
quickly to customers changing demands and to changes in technology.
If we are unable to
continuously improve our products and if we cannot generate effective responses
to our competitors brand power, product innovations, pricing strategies,
marketing campaigns, partnerships, distribution channels, service networks and
other initiatives, our ability to gain market share or market acceptance for
our products could be limited, our revenues and our profit margins may suffer,
and we may never become profitable.
We
face competition for fuel cell power products from developers and manufacturers
of traditional technologies and other alternative technologies.
Each of our target
markets is currently served by existing manufacturers with existing customers
and suppliers. These manufacturers use proven and widely accepted traditional
technologies such as internal combustion engines and turbines, as well as coal,
oil, gas and nuclear powered generators. Additionally, there are competitors
working on developing technologies that use other types of fuel cells and other
alternative power technologies, advanced batteries and hybrid battery/internal
combustion engines, which may compete for our target customers. Given that
proton exchange membrane (
PEM
) fuel
cells have the potential to replace these existing power sources, competition
in our target markets will also come from these traditional power technologies,
from improvements to traditional power technologies and from new alternative
power technologies, including other types of fuel cells.
If we are unable to
continuously improve our products and if we cannot generate effective responses
to incumbent and/or alternative energy competitors brand power, product
innovations, pricing strategies, marketing campaigns, partnerships,
distribution channels, service networks and other initiatives, our ability to
gain market share or market acceptance for our products could be limited, our
revenues and our profit margins may suffer, and we may never become profitable.
12
Our
strategy for the sale of fuel cell power products depends upon developing partnerships
with OEMs, governments, systems integrators, suppliers and other market channel
partners who will incorporate our products into theirs.
Other than in a few
specific markets, our strategy is to develop and manufacture products and
systems for sale to OEMs, governments, systems integrators, suppliers and other
market channel partners that have mature sales and distribution networks for
their products. Our success may be heavily dependent upon our ability to
establish and maintain relationships with these partners who will integrate our
fuel cell products into their products and on our ability to find partners who
are willing to assume some of the research and development costs and risks
associated with our technologies and products. Our performance may, as a
result, depend on the success of other companies, and there are no assurances
of their success. We can offer no guarantee that OEMs, governments, systems
integrators, suppliers and other market channel partners will manufacture
appropriate products or, if they do manufacture such products, that they will
choose to use our products as components. The end products into which our fuel
cell technology will be incorporated will be complex appliances comprising many
components and any problems encountered by such third parties in designing,
manufacturing or marketing their products, whether or not related to the
incorporation of our fuel cell products, could delay sales of our products and
adversely affect our financial results. Our ability to sell our products to the
OEM markets depends to a significant extent upon our partners worldwide sales
and distribution networks and service capabilities. In addition, some of our
agreements with customers and partners require us to provide shared
intellectual property rights in certain situations, and there can be no
assurance that any future relationships that we enter into will not require us
to share some of our intellectual property. Any change in the fuel cell,
hydrogen or alternative fuel strategies of one of our partners could have a
material adverse effect on our business and our future prospects.
In addition, in some
cases, our relationships are governed by a non-binding memorandum of
understanding or a letter of intent. We cannot assure you that we will be able
to successfully negotiate and execute definitive agreements with any of these
partners, and failure to do so may effectively terminate the relevant
relationship. We also have relationships with third party distributors who also
indirectly compete with us. For example, we have targeted industrial gas
suppliers as distributors of our hydrogen generators. Because industrial gas
suppliers currently sell hydrogen in delivered form, adoption by their
customers of our hydrogen generation products could cause them to experience
declining demand for delivered hydrogen. For this reason, industrial gas
suppliers may be reluctant to purchase our hydrogen generators. In addition,
our third party distributors may require us to provide volume price discounts
and other allowances, or customize our products, either of which could reduce
the potential profitability of these relationships.
We
are dependent upon third party suppliers for key materials and components for
our products. If these suppliers become unable or unwilling to provide us with
sufficient materials and components on a timely and cost-effective basis, we
may be unable to manufacture our products cost-effectively or at all, and our
revenues and gross margins would suffer.
We rely upon third party
suppliers to provide key materials and components for our fuel cell power
products, hydrogen generation products and fuel cell test equipment. A suppliers
failure to provide materials or components in a timely manner, or to provide
materials and components that meet our quality, quantity or cost requirements,
or our inability to obtain substitute sources for these materials and
components in a timely manner or on terms acceptable to us, may harm our
ability to manufacture our products cost-effectively or at all, and our
revenues and gross margins might suffer. To the extent that we are unable to
develop and patent our own technology and manufacturing processes, and to the
extent that the processes that our suppliers use to manufacture materials and
components are proprietary, we may be unable to obtain comparable materials or
components from alternative suppliers, and that could adversely affect our
ability to produce commercially viable products.
We
may not be able to manage successfully the expansion of our operations.
The uneven pace of our
expansion in facilities, staff and operations has placed serious demands on our
managerial, technical, financial and other resources. We may be required to
make significant investments in our engineering and logistics systems and our
financial and management information systems, as well as retaining, motivating
and effectively managing our employees. Our management skills and systems
currently in place may not enable us to implement our strategy or to attract
and retain skilled management, engineering and production
13
personnel. Our
failure to manage our growth effectively or to implement our strategy in a
timely manner may significantly harm our ability to achieve profitability.
If
we do not properly manage foreign sales and operations, our business could
suffer.
We expect that a
substantial portion of our future revenues will continue to be derived from
foreign sales. Our international activities may be subject to inherent risks,
including regulatory limitations restricting or prohibiting the provision of
our products and services, unexpected changes in regulatory requirements,
tariffs, customs, duties and other trade barriers, difficulties in staffing and
managing foreign operations, longer payment cycles, problems in collecting
accounts receivable, fluctuations in currency exchange rates, foreign exchange
controls that restrict or prohibit repatriation of funds, technology export and
import restrictions or prohibitions, delays from customs brokers or government
agencies, seasonal reductions in business activity and potentially adverse tax
consequences resulting from operating in multiple jurisdictions. As a result,
if we do not properly manage foreign sales and operations, our business could
suffer.
We
will need to recruit, train and retain key management and other qualified
personnel to successfully expand our business.
Our future success will
depend in large part upon our ability to recruit and retain experienced research
and development, engineering, manufacturing, operating, sales and marketing,
customer service and management personnel. We compete in young markets and
there are a limited number of people with the appropriate combination of skills
needed to provide the services that our customers require. In the past, we have
experienced difficulty in recruiting qualified personnel and we expect to
experience continued difficulties in personnel recruiting. If we do not attract
such personnel, we may not be able to expand our business. In addition, new
employees generally require substantial training, which requires significant
resources and management attention. Our success also depends upon retaining our
key management, research, product development, engineering, marketing and
manufacturing personnel. Even if we invest significant resources to recruit,
train and retain qualified personnel, we may not be successful in our efforts.
We
may acquire technologies or companies in the future, and these acquisitions
could disrupt our business and dilute our shareholders interests.
We may acquire additional
technologies or other companies in the future and we cannot provide assurances
that we will be able to successfully integrate their operations or that the
cost savings we anticipate will be fully realized. Entering into an acquisition
or investment entails many risks, any of which could materially harm our
business, including:
·
diversion
of managements attention from other business concerns;
·
failure
to effectively assimilate our acquired technology, employees or other assets
into our business;
·
the
loss of key employees from either our current business or the acquired business;
and
·
assumption
of significant liabilities of the acquired company.
If we complete additional
acquisitions, we may dilute the ownership of current shareholders. In addition,
achieving the expected returns and cost savings from our past and future
acquisitions will depend in part upon our ability to integrate the products and
services, technologies, research and development programs, operations, sales
and marketing functions, finance, accounting and administrative functions, and
other personnel of these businesses into our business in an efficient and
effective manner. We cannot ensure that we will be able to do so or that the
acquired businesses will perform at anticipated levels. If we are unable to
successfully integrate acquired businesses, our anticipated revenues may be
lower and our operational costs may be higher.
14
We
have no experience manufacturing our products on a large scale basis, and if we
do not develop adequate manufacturing processes and capabilities to do so in a
timely manner, we will be unable to achieve our growth and profitability
objectives.
We have manufactured most
of our products for prototypes and initial sales, and we have limited
experience manufacturing products on a larger scale. In order to produce
certain of our products at affordable prices we will have to manufacture a
large volume of such products. We do not know when or whether we will be able
to develop efficient, low-cost manufacturing capabilities and processes that
will enable us to meet the quality, price, engineering, design and production
standards or production volumes required to successfully mass market such
products. Even if we are successful in developing our manufacturing
capabilities and processes, we do not know whether we will do so in time to
meet our product commercialization schedule or to satisfy the requirements of our
customers and the market. Our failure to develop these manufacturing processes
and capabilities in a timely manner could prevent us from achieving our growth
and profitability objectives.
Risk Factors Related to Our Products and Technology
We
may never complete the development of commercially viable fuel cell power
products and/or commercially viable hydrogen generation systems for new
hydrogen energy applications, and if we fail to do so, we will not be able to
meet our business and growth objectives.
We have made commercial
sales of hydrogen generation, fuel cell test and diagnostic equipment, fuel
cell power modules, integrated fuel cell systems and hydrogen refueling
stations for a relatively short period of time. Because both our business and
industry are still in the developmental stage, we do not know when or whether
we will successfully complete research and development of commercially viable
fuel cell power products and commercially viable hydrogen generation equipment
for new hydrogen energy applications. If we do not complete the development of
such commercially viable products, we will be unable to meet our business and
growth objectives. We expect to face unforeseen challenges, expenses and
difficulties as a developing company seeking to design, develop and manufacture
new products in each of our targeted markets. Our future success also depends
upon our ability to effectively market fuel cell products and hydrogen
generation products once developed.
We
must lower the cost of our fuel cell and hydrogen generation products and
demonstrate their reliability, or consumers will be unlikely to purchase our
products and we will therefore not generate sufficient revenues to achieve and
sustain profitability.
Fuel cells currently cost
more than many established competing technologies, such as internal combustion
engines and batteries. The prices of fuel cell and hydrogen generation products
are dependent largely upon material and manufacturing costs. We cannot
guarantee that we will be able to lower these costs to a level where we will be
able to produce a competitive product or that any product we produce using
lower cost materials and manufacturing processes will not suffer from lower
performance, reliability and longevity. If we are unable to produce fuel cell
and hydrogen generation products that are competitive with other technologies
in terms of price, performance, reliability and longevity, consumers will be
unlikely to buy our fuel cell and hydrogen generation products. Accordingly, we
would not be able to generate sufficient revenues with positive gross margins
to achieve and sustain profitability.
Any
failures or delays in field tests of our products could negatively affect our
customer relationships and increase our manufacturing costs.
We regularly field test
our products and we plan to conduct additional field tests in the future. Any
failures or delays in our field tests could harm our competitive position and
impair our ability to sell our products. Our field tests may encounter problems
and delays for a number of reasons, including the failure of our technology,
the failure of the technology of others, the failure to combine these
technologies properly, operator error and the failure to maintain and service
the test prototypes properly. Many of these potential problems and delays are
beyond our control. In addition, field test programs, by their nature, may
involve delays relating to product roll-out and modifications to product
design, as well as third party involvement. Any problem or perceived problem
with our field tests, whether it originates from our technology, our design, or
third parties, could hurt our reputation and the reputation of our products and
limit our sales. Such field test failures may negatively affect our relationships
with
15
customers, require
us to extend field testing longer than anticipated before undertaking
commercial sales and require us to develop further our technology to account
for such failures prior to the field tests, thereby increasing our
manufacturing costs.
The
components of our products may contain defects or errors that could negatively
affect our customer relationships and increase our development, service and
warranty costs.
Our products are complex
and must meet the stringent technical requirements of our customers. The
software and other components used in our fuel cell and hydrogen generation
products may contain undetected defects or errors, especially when first
introduced, which could result in the failure of our products to perform,
damage to our reputation, delayed or lost revenue, product returns, diverted
development resources and increased development, service and warranty costs.
Rapid
technological advances or the adoption of new codes and standards could impair
our ability to deliver our products in a timely manner and, as a result, our
revenues would suffer.
Our success depends in
large part on our ability to keep our products current and compatible with
evolving technologies, codes and standards. Unexpected changes in technology or
in codes and standards could disrupt the development of our products and
prevent us from meeting deadlines for the delivery of products. If we are
unable to keep pace with technological advancements and adapt our products to
new codes and standards in a timely manner, our products may become
uncompetitive or obsolete and our revenues would suffer.
We
depend upon intellectual property and our failure to protect that intellectual
property could adversely affect our future growth and success.
Failure to protect our
intellectual property rights may reduce our ability to prevent others from
using our technology. We rely on a combination of patent, trade secret,
trademark and copyright laws to protect our intellectual property. Some of our
intellectual property is currently not covered by any patent or patent
application. Patent protection is subject to complex factual and legal criteria
that may give rise to uncertainty as to the validity, scope and enforceability
of a particular patent. Accordingly, we cannot be assured that:
·
any of the
United States, Canadian or other patents owned by us or third party patents
licensed to us will not be invalidated, circumvented, challenged, rendered
unenforceable, or licensed to others; or
·
any of our
pending or future patent applications will be issued with the breadth of
protection that we seek, if at all.
In addition, effective
patent, trademark, copyright and trade secret protection may be unavailable,
limited, not applied for or unenforceable in foreign countries.
Furthermore, although we
typically retain sole ownership of the intellectual property we develop, in
certain circumstances, such as with Dow Corning and General Motors, we provide
for shared intellectual property rights. For instance, where intellectual
property is developed pursuant to our use of technology licensed from General
Motors, we have committed to provide certain exclusive or non-exclusive
licences in favour of General Motors, and in some cases the intellectual
property is jointly owned. As a result of these licences, we may be limited or
precluded, as the case may be, in the exploitation of such intellectual
property rights.
We have also entered into
agreements with other customers and partners that involve shared intellectual
property rights. Any developments made under these agreements will be available
for future commercial use by all parties to the agreement.
We also seek to protect
our proprietary intellectual property through contracts including, when
possible, confidentiality agreements and inventors rights agreements with our
customers and employees. We cannot be sure that the parties that enter into
such agreements with us will not breach them, that we will have adequate
16
remedies for any
breach or that such persons or institutions will not assert rights to
intellectual property arising out of these relationships. If necessary or
desirable, we may seek licences under the patents or other intellectual
property rights of others. However, we cannot be sure that we will obtain such
licences or that the terms of any offered licences will be acceptable to us.
Our failure to obtain a license from a third party for intellectual property we
use in the future could cause us to incur substantial liabilities and to
suspend the manufacture and shipment of products or our use of processes that
exploit such intellectual property.
Our
involvement in intellectual property litigation could negatively affect our
business.
Our future success and
competitive position depend in part upon our ability to obtain or maintain the
proprietary intellectual property used in our principal products. In order to
establish and maintain such a competitive position we may need to prosecute
claims against others who we believe are infringing our rights and defend
claims brought by others who believe that we are infringing their rights. Our
involvement in intellectual property litigation could result in significant expense
to us, adversely affect the sale of any products involved or the use or
licensing of related intellectual property and divert the efforts of our
technical and management personnel from their principal responsibilities,
regardless of whether such litigation is resolved in our favour. If we are
found to be infringing on the intellectual property rights of others, we may,
among other things, be required to:
·
pay
substantial damages;
·
cease the
development, manufacture, use, sale or importation of products that infringe
upon such intellectual property rights;
·
discontinue
processes incorporating the infringing technology;
·
expend
significant resources to develop or acquire non-infringing intellectual
property; or
·
obtain
licences to the relevant intellectual property.
We cannot offer any
assurance that we will prevail in any such intellectual property litigation or,
if we were not to prevail in such litigation, that licences to the intellectual
property that we are found to be infringing upon would be available on
commercially reasonable terms, if at all. The cost of intellectual property
litigation as well as the damages, licensing fees or royalties that we might be
required to pay could have a material adverse effect on our business and
financial results.
Our
products use flammable fuels that are inherently dangerous substances and could
subject us to product liabilities.
Our financial results
could be materially impacted by accidents involving either our products or
those of other fuel cell manufacturers, either because we face claims for
damages or because of the potential negative impact on demand for fuel cell
products. Our products use hydrogen, which is typically generated from gaseous
and liquid fuels such as propane, natural gas or methanol in a process known as
reforming. While our fuel cell products do not use these fuels in a combustion
process, natural gas, propane and other hydrocarbons are flammable fuels that
could leak and then combust if ignited by another source. In addition, certain
of our OEM partners and customers may experience significant product liability
claims. As a supplier of products and systems to these OEMs, we face an inherent
business risk of exposure to product liability claims in the event that our
products, or the equipment into which our products are incorporated,
malfunction and result in personal injury or death. We may be named in product
liability claims even if there is no evidence that our systems or components
caused the accidents. Product liability claims could result in significant
losses from expenses incurred in defending claims or the award of damages.
Since our products have not yet gained widespread market acceptance, any
accidents involving our systems, those of other fuel cell products or those
used to produce hydrogen could materially impede acceptance of our products. In
addition, although our management believes that our liability coverage is currently
adequate to cover these risks, we may be held responsible for damages beyond
the scope of our insurance coverage.
17
Risk Factors Related to Ownership of Our Common Shares
If
we fail to maintain the requirements for continued listing on the Nasdaq, our
common shares could be delisted from trading on Nasdaq, which would materially
adversely affect the liquidity of our common shares, the price of our common
shares, and our ability to raise additional capital.
Failure to meet the
applicable continued listing requirements of Nasdaq could result in our common
shares being delisted from Nasdaq. In the past we have been unable to meet the
continued listing requirements of Nasdaq and may not be able to meet the requirements
in the future.
On September 15,
2009, we received formal notification from Nasdaq informing us that we failed
to maintain a minimum closing bid price on Nasdaq of at least US$1.00 per share
for our common shares for 30 consecutive business days, as we are required to
do under Nasdaq Marketplace Rule 4450(a)(5) (the Minimum Bid Price
Rule). We were given 180 days from September 15, 2009 to regain
compliance by having the bid price of our common shares close at US$1.00 per
share or more for a minimum of 10 consecutive business days prior to the end of
the 180-day period.
We have received prior
notices of non-compliance with the Minimum Bid Price Rule on May 10,
2007 and February 19, 2008. On both
prior occasions, we were given 180 days to regain compliance by having the bid
price of our common shares close at US$1.00 per share or more for a minimum of
10 consecutive business days prior to the end of the 180-day period. While we
regained compliance on both occasions, we can give no assurances that we will
be able to comply, or maintain future compliance, with the Minimum Bid Price Rule or
all of the continued listing requirements of Nasdaq.
As at November 6,
2009, we are not in compliance with the Minimum Bid Price Rule. While we may explore various actions to meet
the Minimum Bid Price Rule, including implementing a share consolidation, there
is no guarantee that any such action will be successful in bringing us into, or
maintaining, compliance.
If we fail to satisfy
Nasdaqs continued listing requirements, our common shares could be delisted
from Nasdaq, in which case we may move to the Nasdaq Capital Market, which
generally has lower financial requirements for initial listing or, if we fail
to meet its listing requirements, the over-the-counter bulletin board. However,
there can be no assurance that our common shares will be eligible for trading
on any such alternative exchanges or markets in the United States.
If we are delisted from
Nasdaq, it would materially reduce the liquidity of our common shares, lower
the price of our common shares, and impair our ability to raise financing.
In
order to comply with Nasdaqs Minimum Bid Price Rule we may implement a
share consolidation, which could adversely affect our common share price and
its liquidity.
We may implement a share
consolidation in order to comply with Nasdaqs Minimum Bid Price Rule. In light
of the Companys past non-compliance with the Minimum Bid Price Rule, our
shareholders approved a special resolution at our annual and special meeting of
shareholders held on May 13, 2009, that gave authority to our Board of
Directors, in its sole discretion, to amend our articles of incorporation to
allow for a consolidation of our issued and outstanding common shares at any
time prior to March 24, 2010, and to select the exact consolidation ratio,
provided that (i) the ratio may be no smaller than one post-consolidation
share for every 10 pre-consolidation shares, and no larger than one
post-consolidation share for every 25 pre-consolidation shares, and (ii) the
number of pre-consolidation shares in the ratio must be a whole number of
shares.
The exact number of
shares of the Company to be consolidated, if at all, would be determined by our
Board of Directors before the share consolidation would be effective, and the
Company will issue a news release announcing the ratio as determined by our
Board of Directors.
Notwithstanding the
approval of the share consolidation by our shareholders, our Board of Directors
may, in its sole discretion, abandon the share consolidation without further
approval or action by or prior
18
notice to
shareholders. The TSX has conditionally approved the share consolidation and
implementation of the share consolidation is subject to the Company fulfilling
all requirements of the TSX.
Our shareholders approved
a similar special resolution at the Companys annual and special meeting of
shareholders on May 6, 2008, which authorized our Board of Directors, in
its sole discretion, to implement a share consolidation at any time prior to March 10,
2009 based on a consolidation ratio no smaller than one post-consolidation
share for every five pre-consolidation shares, and no larger than one
post-consolidation share for every 10 pre-consolidation shares, but otherwise
subject to the same conditions described above. Although our Board of Directors
did not believe it to be in the best interests of the Company to implement a
share consolidation during that time, as in the past, our Board of Directors
has considered the potential adverse effects to the Company of a delisting from
Nasdaq, and has determined that the flexibility afforded by a share
consolidation could allow the Company to comply with Nasdaqs Minimum Bid Price
Rule.
While such share
consolidation could bring us back into compliance with the listing requirements
of Nasdaq, there can be no assurance that any increase in the market price of
our common shares resulting from a share consolidation, if implemented, would
be sustainable. There are numerous factors and contingencies that would affect
such price, including the market conditions for our common shares at the time,
our reported results of operations in future periods and general economic,
geopolitical, stock market and industry conditions. Accordingly, the total
market capitalization of our common shares after a share consolidation may be
lower than the total market capitalization before such share consolidation and,
in the future, the market price of our common shares might not exceed or remain
higher than the market price prior to such share consolidation. There can be no
assurance that a share consolidation would result in a per share market price
that attracts institutional investors or investment funds, or that such price
would satisfy the investing guidelines of institutional investors or investment
funds. As a result, the trading liquidity of our common shares might not
improve as a result of a share consolidation. Furthermore, the liquidity of our
common shares could be adversely affected by the reduced number of our common
shares that would be outstanding after the share consolidation.
If
at any time we qualify as a passive foreign investment company under United
States tax laws, our shareholders may be subject to adverse tax consequences.
We would be classified as
a passive foreign investment company (
PFIC
), for
United States federal income tax purposes, in any taxable year in which, after
applying relevant look-through rules with respect to the income and assets
of our subsidiaries, either at least 75% of our gross income is passive
income, or on average at least 50% of the gross value of our assets is
attributable to assets that produce passive income or are held for the
production of passive income.
Based on the structure of
the Company, and the composition of our income and assets, the Company does not
believe that it was a PFIC for the taxable year ended December 31, 2008 or
its prior taxable year. However, there can be no assurance that the Internal Revenue
Service will not successfully challenge our position or that we will not become
a PFIC in a future taxable year, as PFIC status is re-tested each year and
depends on our assets and income in such year. If we are classified as a PFIC
at any time that a U.S. Holder (as defined below) holds our common shares, such
holder may be subject to an increased United States federal income tax
liability and a special interest charge in respect of a gain recognized on the
sale or other disposition of our common shares and upon the receipt of certain excess
distributions (as defined in the United States Internal Revenue Code of 1986,
as amended).
U.S. Holders should
consult their own tax advisors concerning the United States federal income tax
consequences of holding our common shares if we were a PFIC in any taxable year
and its potential application to their particular situation.
A
limited number of shareholders collectively own a significant portion of our
common shares and may act, or prevent corporate actions, to the detriment of
other shareholders.
A limited number of
shareholders, including our founders and General Motors, currently own a
significant portion of our outstanding common shares. General Motors currently
owns approximately 12.3% of our outstanding common shares. Accordingly, these
shareholders may exercise significant influence over all matters
19
requiring
shareholder approval, including the election of a majority of our directors and
the determination of significant corporate actions. This concentration could
also have the effect of delaying or preventing a change in control that could
otherwise be beneficial to our shareholders.
In addition to General
Motors current ownership of our common shares, pursuant to our strategic
alliance with General Motors, for so long as General Motors holds at least 10%
of our outstanding shares, if any of our founders, Pierre Rivard, Joseph
Cargnelli or Boyd Taylor, wish to transfer (i) all or substantially all of
their shares to any person, or (ii) any of their shares to a person
actively competing with General Motors in the automotive or fuel cell industry,
he must first offer the shares to General Motors. Moreover, if we issue
additional equity securities or securities convertible into equity securities
for cash consideration, we have granted General Motors the right to participate
in such offering on a pro rata basis based on the fully diluted number of
common shares that it holds, subject to certain limited exceptions. We have
also agreed that one director nominated by General Motors shall be included in
the slate of directors that is presented to shareholders for approval at our
general meeting. As a principal shareholder and party to the strategic alliance
and representative on our Board , General Motors has the ability to influence
our corporate actions and in a manner that may be adverse to your interests.
Future
sales of common shares by our principal shareholders could cause our share
price to fall and reduce the value of a shareholders investment.
If our principal
shareholders, including our founders, sell substantial amounts of their common
shares in the public market, the market price of our common shares could fall
and the value of a shareholders investment could be reduced. The perception
among investors that these sales may occur could have a similar effect. Share
price declines may be exaggerated if the low trading volume that our common
shares have experienced to date continues. These factors could also make it
more difficult for us to raise additional funds through future offerings of our
common shares or other securities.
Our
articles of incorporation authorize us to issue an unlimited number of common
and preferred shares, and significant issuances of common or preferred shares
could dilute the share ownership of our shareholders, deter or delay a takeover
of us that our shareholders may consider beneficial or depress the trading
price of our common shares.
Our articles of
incorporation permit us to issue an unlimited number of common and preferred
shares. If we were to issue a significant number of common shares, it would
reduce the relative voting power of previously outstanding shares. Such future
issuances could be at prices less than our shareholders paid for their common
shares. If we were to issue a significant number of common or preferred shares,
these issuances could also deter or delay an attempted acquisition of us that a
shareholder may consider beneficial, particularly in the event that we issue
preferred shares with special voting or dividend rights. While Nasdaq and TSX rules may
require us to obtain shareholder approval for significant issuances, we would
not be subject to these requirements if we ceased, voluntarily or otherwise, to
be listed on Nasdaq and the TSX. Significant issuances of our common or
preferred shares, or the perception that such issuances may occur, could cause
the trading price of our common shares to drop.
U.S.
investors may not be able to enforce U.S. civil liability judgments against us
or our directors and officers.
We are organized under
the laws of Canada. A majority of our directors and officers are residents of
Canada and all or a substantial portion of their assets and substantially all
of our assets are located outside of the United States. As a result, it may be
difficult for U.S. holders of our common shares to effect service of process on
these persons within the United States or to realize in the United States upon
judgments rendered against them. In addition, a shareholder should not assume
that the courts of Canada (i) would enforce judgments of U.S. courts
obtained in actions against us or such persons predicated upon the civil
liability provisions of U.S. federal securities laws or other laws of the
United States, or (ii) would enforce, in original actions, claims against
us or such persons predicated upon the U.S. federal securities laws.
20
Our
share price is volatile and we may continue to experience significant share
price and volume fluctuations.
Since our common shares
were initially offered to the public in November 2000, the stock markets,
particularly in the technology and alternative energy sectors, and our share
price have experienced significant price and volume fluctuations. Our common
shares may continue to experience volatility for reasons unrelated to our own
operating performance, including:
·
performance
of other companies in the fuel cell or alternative energy business;
·
news
announcements, securities analysts reports and recommendations and other
developments with respect to our industry or our competitors; or
·
changes in
general economic conditions.
As
at October 30, 2009 there were 6,719,598 options to purchase our common
shares. If these securities are exercised, our shareholders will incur
substantial dilution.
A significant element in
our plan to attract and retain qualified personnel is the issuance to such
persons of options to purchase our common shares. As at October 30, 2009,
we have issued and outstanding 6,719,598 options to purchase our common shares
at an average price of Cdn$2.52 per common share. Accordingly, to the extent
that we are required to issue significant numbers of options to our employees, and
such options are exercised, you could experience significant dilution.
21
THE COMPANY
This summary does not contain all
the information about us that may be important to you. You should read the more
detailed information and financial statements and related notes that are
incorporated by reference and are considered to be part of this prospectus.
We were incorporated on June 10,
2009 under the
Canada Business Corporations Act
,
under the name 7188501 Canada Inc. We changed our name to Hydrogenics
CorporationCorporation Hydrogenique on October 27, 2009 in connection
with a non-dilutive financing transaction involving Algonquin Power Income Fund
(APIF), as described further below under Recent Developments APIF
Transaction.
Our original predecessor
(Old Hydrogenics) was founded in 1988 under the name Traduction Militech
Translation Inc. It subsequently changed its name to Societe Hydrogenique
IncorporéeHydrogenics Corporation Incorporated. From 1990 to August 1995,
Societe Hydrogenique IncorporéeHydrogenics Corporation Incorporated did not
actively carry on business. In August 1995, it commenced our fuel cell
technology development business, and in 2000, changed its name to Hydrogenics
Corporation Corporation Hydrogenique. Until October 27, 2009, we were a
wholly-owned subsidiary of Old Hydrogenics.
We are a globally
recognized developer and provider of hydrogen generation and fuel cell
products. We conduct our business through the following business units: (i) OnSite
Generation, which focuses on hydrogen generation products for renewable energy,
industrial and transportation customers; and
(ii) Power
Systems, which focuses on fuel cell products for original equipment
manufacturers, or OEMs, systems integrators and end users for stationary
applications, including backup power, and motive applications, such as forklift
trucks. In November 2007, we announced that we were exiting the fuel cell
test products, design, development and manufacturing business, that was
conducted through our Test Systems business unit. The orderly windup of the
Test Systems unit, which focused on fuel cell test and diagnostic products and
contract testing services for third parties, is anticipated to be completed by
the end of 2009.
Our business units are
supported by a corporate services group providing finance, insurance, investor
relations, communications, treasury, human resources, strategic planning,
compliance, and other administrative services.
Our principal executive
offices are located at 5985 McLaughlin Road, Mississauga, Ontario, Canada L5R
1B8. Our telephone number is (905) 361-3600.
OUR BUSINESS
OnSite Generation
Our OnSite Generation
business segment is based on alkaline water electrolysis technology which
involves the decomposition of water (H
2
O)
into oxygen (O
2
) and hydrogen gas (H
2
) by passing an electric current through a liquid
electrolyte. The resultant hydrogen gas is then captured and used for
industrial gas applications, hydrogen fueling applications, and used to store
renewable energy in the form of hydrogen gas. Our HySTAT® branded electrolyzer
products are based on 60 years of hydrogen experience, meet international
standards such as ASME, CE, Rostechnadzor and UL and are certified ISO 9001
from design to delivery. We configure our HySTAT® products for both indoor and
outdoor applications and tailor our product to accommodate various hydrogen gas
requirements.
The worldwide market for
hydrogen, which includes the merchant gas market for hydrogen, is estimated at
US$5 billion annually, and is served by industrial gas companies as well as
on-site hydrogen generation product manufacturers such as ourselves. We believe
that the annual market for on-site hydrogen generation equipment is
approximately US$100 million to US$200 million.
22
Our OnSite Generation
products are sold to leading merchant gas companies such as Air Liquide S.A.
and Linde AG and end users requiring high purity hydrogen produced on-site for
industrial applications. We also sell products to progressive oil and gas
companies, such as Shell Hydrogen, requiring hydrogen fueling stations for
transportation applications. Recently, we have begun to sell our products to
leading electric power utilities, including Powertech Labs, Inc., a wholly
owned subsidiary of BC Power, and Newfoundland and Labrador Hydro (Hydro)
requiring renewable energy storage.
The business objectives
for our OnSite Generation group are to: (i) further increase the gross
margins of existing product lines by improving our procurement and
manufacturing processes; (ii) further increase the reliability and
durability of our products to exceed the expectations of our applications; (iii) reduce
the cost of ownership of our products through design and technology
improvement; (iv) continue to pursue opportunities for customers to
convert renewable energy, such as wind and solar energy, into hydrogen; and (v) further
expand into ready markets such as Eastern Europe (including Russia), Asia and
the Middle East.
Power Systems
Our Power Systems
business is based on proton exchange membrane, or PEM, fuel cell technology
which transforms chemical energy to electrical energy when liberated during the
electrochemical reaction of hydrogen and oxygen. Our HyPM® branded fuel cell
products are based on our extensive track record of on-bench testing and realtime
deployments across a wide range of stationary and motive power applications.
Our HyPM
®
products can be scaled to produce from 4 to 65
kilowatts of electrical power. These compact units provide ease of integration,
high reliability and durability and impressive operating efficiency.
Our target markets
include backup power for data centres and telecom installations plus motive
power applications, such as forklift trucks. The military, historically an
early technology adopter, is a specialized market for our innovative fuel cell
based systems. The worldwide market for data centre backup power is estimated
to be in excess of US$6 billion and the market for telecom backup power is
estimated to be US$2 to US$3 billion in the U.S. alone, based on a complete
displacement of existing battery systems. The addressable market for forklift
truck products is estimated at US$0.4 billion.
Our Power Systems
products are sold to leading OEMs, such as Commscope, Inc., to provide
backup power applications for data centres and telecom sites. They are also
sold to Crown Equipment Corporation, Linde Materials Handling, Mitsubishi
Forklifts and NACCO Materials Handling Group, Inc. for prototype field
tests of our fuel cell power modules that replace traditional lead-acid battery
packs used by indoor industrial forklift trucks.
The business objectives
for our Power Systems group are to: (i) offer a standard fuel cell
platform for many markets thereby enabling ease of manufacturing and reduced
development spending; (ii) achieve further market penetration in the
backup power and motive power markets by tailoring our HyPM® fuel cell products
to meet market specific requirements including price, performance and features;
(iii) invest in sales and market development activities in the backup
power and motive power markets; (iv) continue to target the military and
other early adopters of emerging technologies as a bridge to future commercial
markets; and (v) secure the requisite people and processes to align our
anticipated growth plans with our resources and capabilities.
Test Systems
Until recently, we
provided fuel cell test services and equipment to many of the worlds leading
automotive companies such as General Motors Corporation, Nissan and Toyota as
well as to fuel cell developers and component suppliers currently engaged in
their own fuel cell development programs. On November 7, 2007, we
announced our decision to commence an orderly windup of our fuel cell test
products and design, development and manufacturing business. We anticipate that
this windup will be completed by the end of 2009 and require approximately
US$3.5 million of funding with a corresponding charge to earnings. The
substantial majority of the cash requirements and corresponding charge to
earnings occurred in the fourth quarter of 2007.
23
Recent Developments
Fuel
Cells
On April 27, 2009 we
sold a third HyPM
®
HD
fuel cell power module as part of the Federal Transit Administrations National
Fuel Cell Bus Program (
NFCBP
).
On May 5, 2009, we
announced that two additional Hydrogenics fuel cell powered hybrid MidiBuses
have been put into operation. As we previously announced in 2008, the buses
were purchased by Vestische Strassenbahnen GmbH, a regional urban transit
authority located in Herten, Germany. There are now ten Hydrogenics-powered
MidiBuses in operation in Europe based on a Tecnobus S.p.A electric bus
platform.
On August 4, 2009,
we announced that we had received an additional order from Proterra LLC for a
zero-emission bus to be deployed in Fort Lewis, Washington. This is part of a
project led by the Center for Transportation and the Environment (
CTE
), sponsored under the Defense Logistics Agencys (
DLA
) Hydrogen and Fuel Cell Research and Development
Program, and the third Proterra EcoRide transit bus that will utilize our fuel
cell power modules. Separately, we have begun building two HyPM
®
HD 16 units for
a zero-emission EVAmerica, LLC Ecobus transit bus project to be demonstrated in
Birmingham, Alabama. This initiative, supported by a grant from the U.S.
Department of Transportations Federal Transit Administration to the University
of Alabama at Birmingham (
UAB
), is led
by a UAB research team and also coordinated by CTE. The EVAmerica bus will be
operated by the Birmingham-Jefferson County Transit Authority and service the
UAB campus as well as metropolitan Birmingham.
On September 3,
2009, we announced that we were awarded a contract to provide HyPM 16 fuel
modules for use in zero emission class 8 short haul trucks being developed by
Vision Industries Corp. (OTC.BB:VIIC) of California. Visions Tyrano truck is
thought to be the worlds first plug-in electric/hydrogen fuel cell powered
heavy duty class 8 vehicle.
Electrolyzers
On April 30, 2009,
we announced the installation of two HySTAT electrolyzers in Europe for
fueling station applications. In conjunction with Heliocentris Fuel Cells AG, a
German fuel cell systems integrator, we have installed a hydrogen-generating
electrolyzer at a bus fueling station in Barth, Germany. Also we installed,
with Schwelm of Germany, an electrolyzer in Dunkirk, France for a similar
hydrogen fueling application. In Barth, our electrolyzer will be the heart of a
solar-assisted gas generation system, providing a zero-emission fueling
solution for a bus also powered by one of our fuel cells. While producing clean,
renewable fuel, the gas generation system will simultaneously provide oxygen to
increase the efficiency of a municipal water treatment facility, saving capital
costs for an otherwise necessary extension of treatment capacity. The Dunkirk
fueling station is already operational, with buses running on a blend of
hydrogen and natural gas. Dunkirk is the first city in France to have a public
hydrogen station.
On August 31, 2009,
we announced that we had received orders from Groupe Cevital of Algeria and the
Obeikan Investment Group of Saudi Arabia for electrolyzers worth, in aggregate,
approximately US$5 million. These Hydrogenics HySTAT units will be used to
produce high-quality hydrogen for vegetable oil processing and glass
production.
On September 23, 2009,
we announced that we had received an order from one of Indias largest steel
manufacturers, Bhushan Power & Steel Limited, for a 2 megawatt
installation of HySTAT electrolyzers.
Renewable
Energy Projects in Europe
On July 28,
2009 we received orders for two fuel cell power module systems - one in
Greenland and the other in France - for renewable energy projects. At both
locations, we will deliver HyPM Rack stationary systems to be utilized for
primary and backup power. In Greenland, the power modules will be delivered to
Nukissiorfiit, the national energy company, in the capital of Nuuk as part of
project H2KT. This initiative will demonstrate the
24
potential of using
hydrogen for energy storage and management in Greenland, such that the country
can better utilize its natural hydro-generation resources. In France, the power
modules will be used for energy generation to supplement photovoltaic and wind
power at the new headquarters of the Abalone Group, a human resources
consulting firm located in the city of Nantes. The Abalone building is planned
to be totally independent of the national electricity grid.
APIF
Transaction
In 2008, Hydrogenics
management concluded that our current operations would likely fail to generate
sufficient cash flow to fund our business plans. To obtain additional cash
until a future financing transaction can be consummated, of which there is no
assurance, Hydrogenics management determined that pursuit of a non-traditional,
non-dilutive financing would be in the best interests of our shareholders.
Since the beginning of our business, we had accumulated significant non-capital
losses and other tax attributes. As a result, our Board of Directors believed
the losses could be effectively utilized for a non-traditional financing
strategy. The enactment of certain changes to the
Income Tax
Act
(Canada) in 2007 gave entities such as APIF an incentive to make
efficient use of the historic tax attributes that had been accumulated by us.
Consequently, in early 2009, APIF was identified as a possible candidate with
whom to pursue such a financing transaction.
On June 11, 2009,
we, Old Hydrogenics, the board of trustees of APIF and APIFs manager,
Algonquin Power Management Inc., agreed upon the terms of a series of
transactions (collectively, the APIF Transaction) and agreements, pursuant to
which Old Hydrogenics agreed to transfer its entire business and operations to
us, including all assets, liabilities, directors, management and employees, but
excluding its tax attributes. Concurrently, the APIF Transaction would enable
unitholders of APIF to continue to hold their interest in APIF as shareholders
of Old Hydrogenics, to be renamed as Algonquin Power & Utilities
Corp. (
APUC
), a publicly traded Canadian
corporation. APUC would have the ability to make efficient use of our
accumulated tax attributes in the continued execution of APIFs business plans.
Under the APIF Transaction, our shareholders would have their common shares in
the capital of Old Hydrogenics redeemed for our common shares on a one-for-one
basis. At the same time APIF unitholders would exchange their units for APUC
common shares.
As a result of completion
of the APIF Transaction on October 27, 2009, unitholders of APIF did not
retain any interest in the business of Hydrogenics nor did shareholders of
Hydrogenics retain any interest in the business of APIF. We have continued to
carry on the hydrogen generation and fuel cell business as a public entity with
all of the assets (including the intellectual property) of our predecessor
prior to the APIF Transaction.
We obtained several key
benefits from the APIF Transaction, including the cash payment of approximately
Cdn$10.8 million, without a dilutive impact on our shareholders. Further
details of the APIF Transaction are set out in the management proxy circular of
Old Hydrogenics dated June 25, 2009, which is incorporated by reference in
this prospectus.
Nasdaq
Listing
On September 15,
2009, we received formal notification from Nasdaq informing us that we were not
in compliance with the minimum closing bid price requirement on Nasdaq.
Commencing September 15, 2009, we were given 180 days to regain compliance
by having the bid price of our common shares close at US$1.00 per share or more
for a minimum 10 consecutive business days prior to the end of the 180-day
period. If we fail to regain compliance, our common shares may be delisted from
Nasdaq. See also Risk Factors Risk Factors Related to Ownership of Our
Common Shares beginning on page 18
of this prospectus.
25
OUR DIRECTORS AND EXECUTIVE OFFICERS
Directors and Executive Officers
The following table presents certain information with
respect to our directors and executive officers.
Name
and Province or State
and Country of Residence
|
|
Title
|
|
Director or
Executive Officer Since
|
Douglas
Alexander
(1)
Ontario, Canada
|
|
Chairman
of our Board of Directors
|
|
2006
|
|
|
|
|
|
Michael
Cardiff
(1)(2)
Ontario, Canada
|
|
Director
|
|
2007
|
|
|
|
|
|
Henry
J. Gnacke
Michigan, U.S.A.
|
|
Director
|
|
2008
|
|
|
|
|
|
V.
James Sardo
(1)
Ontario, Canada
|
|
Director
|
|
2003
|
|
|
|
|
|
Norman M. Seagram
(1)(3)
Ontario, Canada
|
|
Director
|
|
2000
|
|
|
|
|
|
Joseph
Cargnelli
Ontario, Canada
|
|
Chief
Technology Officer and Director
|
|
1996
|
|
|
|
|
|
Daryl
Wilson
Ontario, Canada
|
|
President
and Chief Executive Officer
|
|
2006
|
|
|
|
|
|
Lawrence
E. Davis
Ontario, Canada
|
|
Chief
Financial Officer
|
|
2005
|
|
|
|
|
|
Jennifer
Barber
Ontario, Canada
|
|
Vice
President, Finance and Corporate Controller
|
|
2005
|
|
|
|
|
|
Wido
Westbroek
Geel, Belgium
|
|
Vice
President and General Manager
|
|
2006
|
Notes:
(1) Member of the
Audit Committee and the Human Resources and Corporate Governance Committee.
(2) Chairman of
the Human Resources and Corporate Governance Committee.
(3) Chairman of
the Audit Committee.
Biographies
Set forth below is
biographical information for our current directors and executive officers.
Douglas S. Alexander,
Chairman of our Board of Directors
. Mr. Alexander
has served as Chairman of our Board of Directors since June 2009. Mr. Alexander
joined our Board of Directors in May 2006. Mr. Alexander is a
Director and member of the Audit Committee of Critical Outcome Technologies
Inc., and has served as the Chief Financial Officer of various Canadian public
companies for 15 years. Mr. Alexander was formerly lead director and chair
of the Audit Committee of Saxon Financial Inc. Mr. Alexander served as a
director of Stuart Energy Systems Corporation from 2003 to January 2005.
From 1999 to 2004, Mr. Alexander was Executive Vice President and Chief
Financial Officer of Trojan Technologies Inc., an international environmental
high technology company. Mr. Alexander is a Chartered Director, having
graduated in 2009 from Directors College, a joint venture between McMaster
University and the Conference Board of Canada.
Michael Cardiff,
Director
. Mr. Cardiff joined our Board of Directors in November 2007.
Currently, Mr. Cardiff is the Chief Executive Officer of Accelerents, a
consulting firm focused on strategy development. Prior to holding that
position, Mr. Cardiff held numerous senior positions in a number of
technology companies including large multinationals such as EDS and IBM as well
as startup companies such as Fincentric,
26
Convergent
Technologies, Tandem, and Stratus Computer. Mr. Cardiff is currently a
director of Descartes Systems Group, Burntsand Inc. and Software Growth Inc. Mr. Cardiff
has also served as a director of Husky Injection Molding Systems, Solcorp,
Visible Genetics, Spectra Security Software Visible Decisions and the Toronto
Film Festival and Roy Thomson Hall. Mr. Cardiff received many awards
including A Canadian Export Life Time Achievement Award. In 1998, Mr. Cardiff
was named one of Canadas Top 40 Under 40, recognizing him as one of the
nations most successful young leaders. Mr. Cardiff is a member of, and
holds the ICD.d designation from, the Institute of Corporate Directors.
Joseph Cargnelli,
Chief Technology Officer and Director
. Mr. Cargnelli is one of our
founders and served as a director from January 1996 to January 2005,
when he resigned in connection with our acquisition of Stuart Energy Systems
Corporation. Mr. Cargnelli was re-elected at the meeting of shareholders
on May 17, 2005. Mr. Cargnelli served as our Treasurer from January 1996
until July 2000. Mr. Cargnelli was appointed as our Vice President,
Technology in July 2000. His title was changed to Chief Technology Officer
in April 2003. Mr. Cargnelli earned both a Masters of Applied Science
degree in Mechanical Engineering and a Bachelor of Applied Science degree in
Mechanical Engineering from the University of Toronto. From April 1992 to April 1993,
Mr. Cargnelli served as a Research Engineer with the Laboratory of
Advanced Concepts in Energy Conversion Inc., a laboratory engaged in the
research, development and demonstration of alkaline fuel cells and hydrogen
storage methods. Mr. Cargnelli is a member of the Professional Engineers
of Ontario.
Henry J. Gnacke,
Director
. Mr. Gnacke joined our Board of Directors in May 2008.
Formerly, Mr. Gnacke was the Executive Director, Global Purchasing Supply
chain at General Motors Corporation. He was responsible for fuel cell
propulsion systems and General Motors Corporations E-Flex programs. Mr. Gnacke
has over 30 years of experience and has held numerous positions at General
Motors Corporation, including several international assignments in the Middle
East, Asia and Europe. Mr. Gnacke is the nominee of General Motors Holdings
LLC (General Motors) in connection with our strategic alliance with General
Motors.
V. James Sardo,
Director
. Mr. Sardo joined our Board of Directors in May 2003.
Mr. Sardo is a Corporate Director. In 2005, he became a director of New
Flyer Industries Inc., North Americas largest manufacturer of city buses, has
been a director of Sonnen Energy, a solar integration company, from 2007 to
2009, and a director of Northstar Healthcare Inc., a manager of ambulatory
surgery centres in the U.S., since 2008. During 2004 to 2007, Mr. Sardo
served as a trustee of Union Waterheater Income Trust, a waterheater rental
company, as a director of Royal Group Technologies, a plastics building
products company, and as a director and Chairman of Countryside Power, a power
generation company. From 2003 to 2007, he was a trustee of Custom Direct Income
Fund, a manufacturer and direct marketer of custom cheques. Prior to these
appointments, Mr. Sardo was interim Chief Executive Officer of Royal Group
Technologies Limited, from 2004 to 2005, President of the Canadian Operations
of Moore Corporation Limited, a business forms and communications company, from
1999 to 2001, and President and Chief Executive Officer of SMK Speedy
International Inc., an international automotive repair company from 1997 to
1999. Prior to 1997 Mr. Sardo was Chief Executive Officer of Amre Inc., a
Dallas based marketer of home improvement products, and Chief Executive Officer
of SNE Inc., a manufacturer and marketer of windows and doors. Mr. Sardo
is also a member of the Institute of Corporate Directors, and holds the ICD.d
designation.
Norman M. Seagram,
Director
. Mr. Seagram joined our Board of Directors in July 2000.
Mr. Seagram served as Chairman of our Board of Directors from July 2000
to December 2006, and again from September 2007 to June 2009.
From December 2006 to September 2007, Mr. Seagram acted as Lead
Director. Mr. Seagram was President of Sportsco International LP (SkyDome)
from February 2001 to March 2003. From September 1996 to May 1997,
Mr. Seagram was President and Chief Executive Officer of Molson Inc., a
company he had previously served for 24 years in a variety of senior management
positions. From October 1992 to August 1996, Mr. Seagram was
Chairman and Chief Executive Officer of Air Liquide Canada, Inc., a
producer of industrial gases. Mr. Seagram is a trustee of Trinity College
School and the Toronto Symphony Foundation, and he is a director of
Harbourfront Foundation. He serves on the advisory board of the Faculty of
Applied Science and Engineering, University of Toronto, and he is a former
director of the Toronto Economic Development Corporation (TEDCO).
27
Daryl Wilson,
President and Chief Executive Officer and Director
. Mr. Wilson was appointed President
and Chief Executive Officer in December 2006. Prior to joining
Hydrogenics, Mr. Wilson held senior leadership positions at Royal Group
Technologies Inc., ZENON Environmental Inc., Toyota and Dofasco Inc. In 1990 Mr. Wilson
earned an MBA from McMaster University in Operations Management/Management
Science. Mr. Wilson also holds a Bachelors degree in Chemical Engineering
from the University of Toronto. Mr. Wilson is a Chartered Director, having
graduated in 2009 from Directors College, a joint venture between McMaster
University and the Conference Board of Canada.
Lawrence E. Davis,
Chief Financial Officer and Corporate Secretary
. Mr. Davis has served as our Chief
Financial Officer since April 1, 2005. Mr. Davis has over 20 years of
financial and operational experience. He has been a Chartered Accountant since
1987. From 1999 to 2003, Mr. Davis was the Chief Financial Officer of GDI
Global Data Inc., a wireless data services company. Mr. Davis also acted
as the President of Saturn Capital Corporation, a merchant bank that advises,
invests in and assumes senior management positions for high growth businesses
from 1997 until 1999. From 1987 to 1997, Mr. Davis served as a Vice
President for PricewaterhouseCoopers LLP and he previously worked for two years
with Ernst & Young. Mr. Davis has been a director of Genesis
Worldwide Inc., a provider of structural light steel framing technologies,
since July 2009.
Jennifer Barber,
Vice President, Finance and Corporate Controller
. Ms. Barber joined us through our
acquisition of Stuart Energy Systems Corporation in January 2005 and was
appointed to the position of Vice President Finance and Corporate Controller in
May 2005. Since taking on this position, Ms. Barber has led the
finance team through a full range of financial consolidations arising from the
acquisition, with the added responsibility of integrating Sarbanes-Oxley
requirements into all of our financial processes and procedures. Hired by
Stuart Energy Systems Corporation in 2001, Ms. Barber served as Director,
Corporate Finance from 2003 onward, and prior to that as Controller. She was
employed from 1997 to 2001 by PricewaterhouseCoopers LLP. Ms. Barber
received Institute of Chartered Accountant accreditation in 2000.
Wido Westbroek,
Vice President and General Manager
. Mr. Westbroek joined us in 2006 as
Vice President, Operations of the Belgium On-Site division. His former career,
spanning 18 years, was with Powerlasers, a developer and manufacturer of unique
laser welding technology and a maker of auto parts for major automotive OEMs
based in Canada and the US. Mr. Westbroek received his Bachelor of Science
in Physics at the University of Waterloo in Ontario.
Cease Trade Orders, Bankruptcies, Penalties and Sanctions
Between April 3,
2006 and May 3, 2006, Mr. Sardo, who was then a director of Royal
Group Technologies Limited, was prohibited from trading in securities of Royal
Group Technologies Limited pursuant to a management cease trade order issued by
the Ontario Securities Commission in connection with the delay in filing of
certain of Royal Group Technologies Limiteds financial statements.
Except as described
above, to our knowledge, none of our directors or executive officers is, or
within the 10 years prior to the date hereof has been, a director, chief
executive officer or chief financial officer of any company (including
Hydrogenics) that, while that person was acting in that capacity, (i) was
the subject of a cease trade or similar order or an order that denied the
relevant company access to any exemption under securities legislation for a
period of more than 30 consecutive days; or (ii) was subject to an event
that resulted, after the director or executive officer ceased to be a director,
chief executive officer or chief financial officer in the company being the
subject of a cease trade or similar order or an order that denied the relevant
company access to any exemption under securities legislation for a period of
more than 30 consecutive days.
To our knowledge, none of
our directors or executive officers or any shareholder holding a sufficient
number of our securities to affect materially the control of Hydrogenics is, or
within the 10 years prior to the date hereof has been, a director or executive
officer of any company (including Hydrogenics) that, while that person was
acting in that capacity, or within a year of that person ceasing to act in that
capacity, became bankrupt, made a proposal under any legislation relating to
bankruptcy or insolvency or was subject to or instituted any proceedings,
arrangement or compromise with creditors or had a receiver, receiver manager or
trustee appointed to hold the assets of the director, executive officer or
shareholder.
28
To our knowledge, none of
our directors or executive officers or any shareholder holding a sufficient
number of our securities to affect materially the control of Hydrogenics has,
within the 10 years prior to the date hereof, become bankrupt, made a proposal
under any legislation relating to bankruptcy or insolvency, or become subject
to or instituted any proceedings, arrangement or compromise with creditors, or
had a receiver, receiver manager or trustee appointed to hold the assets of the
director, executive officer or shareholder.
PRICE RANGE AND TRADING
TSX
The following
table sets forth the high and low sale prices (which are not necessarily the
closing prices) and total trading volumes on the TSX for the periods indicated
for our common shares under the symbol HYG, as reported by sources we believe
to be reliable.
Period
|
|
High Price
(Cdn$ per share)
|
|
Low Price
(Cdn$ per share)
|
|
Total
Volume
|
|
|
|
|
|
|
|
|
|
Monthly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
|
January
|
|
0.73
|
|
0.49
|
|
697,361
|
|
February
|
|
0.57
|
|
0.405
|
|
300,993
|
|
March
|
|
0.64
|
|
0.38
|
|
776,549
|
|
April
|
|
0.69
|
|
0.48
|
|
1,255,874
|
|
May
|
|
0.75
|
|
0.51
|
|
1,797,510
|
|
June
|
|
0.80
|
|
0.56
|
|
1,790,730
|
|
July
|
|
0.61
|
|
0.49
|
|
839,000
|
|
August
|
|
0.64
|
|
0.50
|
|
1,000,253
|
|
September
|
|
0.75
|
|
0.52
|
|
1,707,902
|
|
|
|
|
|
|
|
|
|
Annually
(year
ended)
|
|
|
|
|
|
|
|
2008
|
|
2.47
|
|
0.365
|
|
25,047,015
|
|
2007
|
|
1.73
|
|
0.90
|
|
18,265,630
|
|
2006
|
|
5.03
|
|
1.35
|
|
14,460,511
|
|
2005
|
|
6.45
|
|
2.93
|
|
14,235,094
|
|
2004
|
|
9.78
|
|
4.21
|
|
16,887,115
|
|
|
|
|
|
|
|
|
|
Quarterly
(quarter
ended)
|
|
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
|
March 31
|
|
0.73
|
|
0.38
|
|
1,774,903
|
|
June 30
|
|
0.80
|
|
0.56
|
|
1,790,730
|
|
September 30
|
|
0.75
|
|
0.49
|
|
3,547,242
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
|
|
|
|
|
March 31
|
|
1.05
|
|
0.51
|
|
5,360,445
|
|
June 30
|
|
1.99
|
|
0.50
|
|
6,948,585
|
|
September 30
|
|
2.47
|
|
0.60
|
|
10,577,793
|
|
December 31
|
|
0.98
|
|
0.365
|
|
2,160,192
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
|
|
|
|
|
March 31
|
|
1.54
|
|
1.09
|
|
5,043,671
|
|
June 30
|
|
1.45
|
|
0.94
|
|
4,709,663
|
|
September 30
|
|
1.73
|
|
1.15
|
|
4,378,613
|
|
December 31
|
|
1.43
|
|
0.90
|
|
4,133,683
|
|
29
Nasdaq
The following table sets
forth the high and low sale prices (which are not necessarily the closing
prices) and total trading volumes on Nasdaq for the periods indicated for our
common shares under the symbol HYGS, as reported by sources we believe to be
reliable.
Period
|
|
High Price
(US$ per share)
|
|
Low Price
(US$ per share)
|
|
Total
Volume
|
|
|
|
|
|
|
|
|
|
Monthly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
|
January
|
|
0.63
|
|
0.41
|
|
3,943,410
|
|
February
|
|
0.46
|
|
0.32
|
|
2,170,940
|
|
March
|
|
0.51
|
|
0.29
|
|
4,016,620
|
|
April
|
|
0.58
|
|
0.39
|
|
7,510,830
|
|
May
|
|
0.65
|
|
0.44
|
|
8,977,400
|
|
June
|
|
0.75
|
|
0.49
|
|
8,105,830
|
|
July
|
|
0.56
|
|
0.45
|
|
5,075,541
|
|
August
|
|
0.59
|
|
0.45
|
|
6,791,599
|
|
September
|
|
0.69
|
|
0.49
|
|
13,416,600
|
|
|
|
|
|
|
|
|
|
Annually
(year
ended)
|
|
|
|
|
|
|
|
2008
|
|
2.45
|
|
0.32
|
|
160,972,562
|
|
2007
|
|
1.65
|
|
0.84
|
|
100,344,750
|
|
2006
|
|
4.40
|
|
1.21
|
|
128,117,920
|
|
2005
|
|
5.38
|
|
2.50
|
|
90,377,848
|
|
2004
|
|
7.60
|
|
3.19
|
|
82,514,272
|
|
|
|
|
|
|
|
|
|
Quarterly
(quarter
ended)
|
|
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
|
March 31
|
|
0.63
|
|
0.29
|
|
10,130,970
|
|
June 30
|
|
0.55
|
|
0.51
|
|
92,724
|
|
September 30
|
|
0.69
|
|
0.45
|
|
25,266,690
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
|
|
|
|
|
March 31
|
|
1.07
|
|
0.49
|
|
19,951,730
|
|
June 30
|
|
1.95
|
|
0.50
|
|
44,592,168
|
|
September 30
|
|
2.45
|
|
0.55
|
|
81,595,504
|
|
December 31
|
|
0.92
|
|
0.32
|
|
14,833,160
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
|
|
|
|
|
March 31
|
|
1.33
|
|
0.93
|
|
43,917,200
|
|
June 30
|
|
1.36
|
|
0.84
|
|
25,047,100
|
|
September 30
|
|
1.65
|
|
1.10
|
|
15,699,150
|
|
December 31
|
|
1.42
|
|
0.90
|
|
15,681,300
|
|
30
USE OF PROCEEDS
The securities offered by
this prospectus may be offered from time to time at the discretion of the
Company in one or more series or issuances with an aggregate offering amount
not to exceed US$16,000,000
. The net
proceeds derived from the issue of the securities, or any one of them, under
any prospectus supplement will be the aggregate offering amount thereof less
any commission and other issuance costs paid in connection therewith. The net
proceeds cannot be estimated as the amount thereof will depend on the number
and price of the securities issued under any prospectus supplement.
We
will set forth information on the use of net proceeds from the sale of
securities we offer under this prospectus in a prospectus supplement relating
to the specific offering. We will not receive any proceeds from any sales of
securities by any selling securityholders.
We may, from time to
time, issue debt instruments, incur additional indebtedness and issue equity
securities or warrants other than through the issue of securities pursuant to
this prospectus.
EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a
statement of the expenses (all of which are estimated), other than any
underwriting discounts and commission and expenses reimbursed by us, to be incurred
in connection with a distribution of an assumed amount of US$16,000,000
of securities registered under this registration statement.
Securities and Exchange
Commission registration fee
|
|
US$
|
1,000
|
|
Nasdaq Listing Expenses
|
|
|
5,000
|
|
Printing expenses
|
|
|
2,000
|
|
Legal fees and expenses
|
|
|
50,000
|
|
Accountants fees and
expenses
|
|
|
20,000
|
|
Trustee fees and expenses
|
|
|
5,000
|
|
Miscellaneous
|
|
|
25,000
|
|
Total
|
|
US$
|
108,000
|
|
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets
forth our ratio of earnings to fixed charges on a historical basis for the
periods indicated. The ratios are calculated by dividing earnings by fixed
charges. The ratios are provided to assist investors in evaluating our ability
to meet interest requirements of debt securities. For the purpose of computing
the consolidated ratio of earnings to fixed charges, earnings consist of loss
before income taxes. Fixed charges consist of interest and 30% of rent costs.
|
|
Year Ended December 31,
|
|
Nine
Months
Ended
September 30,
|
|
Adjusted
Nine Months
Ended
September
30,
(1)
|
|
|
|
2004
|
|
2005
|
|
2006
|
|
2007
|
|
2008
|
|
2009
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of earnings to fixed
charges
|
|
(2)
|
|
(2)
|
|
(2)
|
|
(2)
|
|
(2)
|
|
(2)
|
|
(2)
|
|
(1)
|
As adjusted to give
effect to the proceeds received in connection with the completion of the APIF
Transaction on October 27, 2009, net of transaction-related expenses.
|
(2)
|
Earnings for 2004
through September 30, 2009 were insufficient to cover fixed charges. The
amounts required to obtain a ratio of one-to-one are set forth in
Exhibit 12.1 to, and incorporated by reference in, our registration
statement on Form F-3 filed with the SEC on November 9, 2009.
|
31
DESCRIPTION OF COMMON SHARES AND
PREFERRED SHARES
The following briefly
summarizes the provisions of our articles of incorporation, including a
description of our share capital. The following description may not be complete
and is subject to, and qualified in its entirety by reference to, the terms and
provisions of our articles of incorporation.
Our authorized share
capital consists of an unlimited number of common shares and an unlimited
number of preferred shares issuable in series. As at November 3, 2009,
there were 92,465,666 common shares and no preferred shares issued and
outstanding.
Common Shares
Dividend
Rights
Holders of common shares
are entitled, subject to the rights, privileges, restrictions and conditions
attaching to any other class of shares, to receive dividends as and when
declared by our Board of Directors.
Voting
Rights
Holders of common shares
are entitled to receive notice of and to attend all meetings of our
shareholders and to vote at such meetings, except meetings at which only
holders of a specific series of shares are entitled to vote. Each common share
carries one vote on all matter to be voted on by our shareholders.
Preemptive,
Subscription, Redemption and Conversion Rights
Common shares do not
carry pre-emptive rights or rights of conversion into any other securities.
However, we have granted General Motors a pre-emptive right whereby so long as
General Motors holds at least 10% of our outstanding common shares, in the
event that any of our founders, Pierre Rivard, Joseph Cargnelli or Boyd Taylor,
wish to transfer (i) all or substantially all of their common shares to
any person, or (ii) any of their common shares to a person actively
competing with General Motors in the automotive or fuel cell industry, he must
first offer the common shares to General Motors. In addition, in the event that
we issue additional equity securities or securities convertible into equity
securities for cash consideration, General Motors has been granted the right to
participate in such offering on a
pro rata
basis
based on the fully diluted number of common shares that it holds. General
Motors pre-emptive right is subject to certain limited exceptions, including
the issuance of common shares in connection with acquisitions.
Liquidation
Rights
Upon our liquidation,
dissolution or winding up, whether voluntary or involuntary, the holders of the
common shares are entitled, subject to the rights, privileges, restrictions and
conditions attaching to any other class of shares, to share ratably in all of
our assets remaining after payment of all liabilities.
Preferred Shares
As you read this section,
please remember that the specific terms of your series of preferred shares as
described in your prospectus supplement will supplement and, if applicable, may
modify or replace the general terms described in this section. If there are
differences between your prospectus supplement and this prospectus, your
prospectus supplement will govern. Thus, the statements we make in this section
may not apply to your series of preferred shares.
Reference to a series of
preferred shares means all of the preferred shares issued as part of the same
series and having the attributes set out in our articles of incorporation.
Reference to your prospectus supplement means the prospectus supplement
describing the specific terms of the preferred shares you purchase. The terms
in your prospectus supplement will have the meanings described in this
prospectus, unless otherwise specified.
32
Under our articles of
incorporation, our Board of Directors is authorized, subject to Canadian law,
without shareholder approval, from time to time to issue an unlimited number of
preferred shares in one or more series. Our Board of Directors can fix the
designations, powers, preferences, privileges and relative participating,
optional or special rights of any preferred shares including any
qualifications, limitations or restrictions. Preferred shares are entitled to
priority over our common shares as to dividend rights, conversion rights,
voting rights, redemption and liquidation preferences. Preferred shares may be
convertible into shares of any other series or class of shares if our Board of
Directors so determines. Our Board of Directors may fix the terms of the series
of preferred shares it designates subject to the issue of a certificate of
amendment setting forth the designation, rights, privileges, restrictions and
conditions attaching to the preferred shares of the series.
The prospectus supplement
relating to the particular series of preferred shares will contain a
description of the specific terms of that series as fixed by our Board of
Directors, including, as applicable;
·
the offering
price at which we will issue the preferred shares;
·
the title and
designation of number of shares of the series of preferred shares;
·
the dividend
rate or method of calculation, the payment dates for dividends and the place or
places where the dividends will be paid, whether dividends will be cumulative
or non-cumulative, and, if cumulative, the dates from which dividends will
begin to accumulate;
·
any
conversion or exchange rights;
·
whether the
preferred shares will be subject to redemption and the redemption price and
other terms and conditions relative to the redemption rights;
·
any
liquidation rights;
·
any sinking
fund provisions;
·
any voting
rights; and
·
any other
rights, preferences, privileges, limitations and restrictions that are not
inconsistent with the terms of our articles of incorporation.
The preferred shares of
each series shall rank on a parity with the preferred shares of every other
series with respect to the payment of dividends and the distribution of assets
in the event of the liquidation, dissolution or winding-up of the Company,
whether voluntary or involuntary, and will be entitled to a preference over our
common shares. If any amount of cumulative dividends, whether or not declared,
or declared non-cumulative dividends or amount payable on any such distribution
of assets constituting a return of capital in respect of the preferred shares
of any series is not paid in full, the preferred shares of such series shall
participate rateably with the preferred shares of every other series in respect
of all such dividends and amounts.
We will deliver an
undertaking to the securities regulatory authority in each of the provinces of
Canada, except Québec, that we will not distribute exchangeable preferred
shares separately to any member of the public in Canada unless the offering is
in connection with and forms part of the consideration for an acquisition or
merger transaction or unless the prospectus supplement containing the specific
terms of the exchangeable preferred shares to be distributed separately is
first approved for filing by the securities commissions or similar regulatory
authorities in each of the provinces and territories of Canada where the
exchangeable preferred shares will be distributed.
33
DESCRIPTION OF DEBT SECURITIES
We may issue debt
securities, including convertible debt securities, from time to time in one or
more series. The specific terms relating to any of our debt securities that we
offer will be described in a prospectus supplement. You should read the
applicable prospectus supplement for the terms of the debt securities offered.
As required by U.S. federal law and in conformity with the applicable laws of
Canada, for all bonds and notes of companies that are publicly offered, the
debt securities will be governed by a document called an indenture. An
indenture is a contract between a financial institution, acting on your behalf
as trustee of the debt securities offered, and us. The trustee has two main
roles. First, subject to some limitations on the extent to which the trustee
can act on your behalf, the trustee can enforce your rights against us if we
default on our obligations under the indenture. Second, the trustee performs
certain administrative duties for us. The specific terms relating to any series
of our debt securities that we offer will be described in a prospectus
supplement. You should read the applicable prospectus supplement for the terms
of the series of debt securities offered.
DESCRIPTION OF SUBSCRIPTION RECEIPTS
The following description
of the terms of the subscription receipts sets forth certain general terms and
provisions of the subscription receipts to which any prospectus supplement may
relate. We may issue subscription receipts that may be exchanged by the holders
thereof for debt securities, preferred shares or common shares upon the satisfaction
of certain conditions. The particular terms and provisions of the subscription
receipts offered pursuant to an accompanying prospectus supplement, and the
extent to which the general terms described below apply to those subscription
receipts, will be described in such prospectus supplement.
Subscription receipts may
be offered separately or together with debt securities, preferred shares or
common shares, as the case may be. The subscription receipts will be issued
under a subscription receipt agreement. Under the subscription receipt
agreement, a purchaser of subscription receipts will have a contractual right
of rescission following the issuance of debt securities, preferred shares or
common shares, as the case may be, to such purchaser, entitling the purchaser
to receive the amount paid for the subscription receipts upon surrender of the
debt securities, preferred shares or common shares, as the case may be, if this
prospectus, the relevant prospectus supplement, and any amendment thereto, contains
a misrepresentation, provided such remedy for rescission is exercised within
180 days of the date the subscription receipts are issued.
Any prospectus supplement
for subscription receipts supplementing this prospectus will contain the terms
and conditions and other information with respect to the subscription receipts
being offered thereby, including:
·
the number of
subscription receipts;
·
the price at
which the subscription receipts will be offered and whether the price is
payable in instalments;
·
any
conditions to the exchange of subscription receipts into debt securities,
preferred shares or common shares, as the case may be, and the consequences of
such conditions not being satisfied;
·
the
procedures for the exchange of the subscription receipts into debt securities,
preferred shares or common shares, as the case may be;
·
the number of
debt securities, preferred shares or common shares, as the case may be, that
may be exchanged upon exercise of each subscription receipt;
34
·
the
designation and terms of any other securities with which the subscription
receipts will be offered, if any, and the number of subscription receipts that
will be offered with each security;
·
the dates or
periods during which the subscription receipts may be exchanged into debt
securities, preferred shares or common shares;
·
whether such
subscription receipts will be listed on any securities exchange;
·
any other
rights, privileges, restrictions and conditions attaching to the subscription
receipts; and
·
any other
specific terms.
Subscription receipt
certificates will be exchangeable for new subscription receipt certificates of
different denominations at the office indicated in the prospectus supplement.
Prior to the exchange of their subscription receipts, holders of subscription
receipts will not have any of the rights of holders of the securities subject
to the subscription receipts.
DESCRIPTION OF WARRANTS
The following description
of the terms of the warrants sets forth certain general terms and provisions of
the warrants to which any prospectus supplement may relate. We will deliver an
undertaking to the securities regulatory authority in each of the provinces of
Canada, except Québec, that we will not distribute warrants separately to any
member of the public in Canada unless the offering is in connection with and
forms part of the consideration for an acquisition or merger transaction or
unless the prospectus supplement containing the specific terms of the warrants
to be distributed separately is first approved for filing by the securities
commissions or similar regulatory authorities in each of the provinces and
territories of Canada where the warrants will be distributed.
We may issue warrants for
the purchase of common shares, preferred shares or debt securities. Warrants
may be issued independently or together with common shares, preferred shares or
debt securities offered by any prospectus supplement and may be attached to, or
separate from, any such offered securities. Each series of warrants will be
issued under a separate warrant agreement to be entered into between us and a
bank or trust company, as warrant agent. The warrant agent will act solely as
our agent in connection with the warrants and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
warrants. The following summary of certain provisions of the warrants does not
purport to be complete and is subject to, and qualified in its entirety by,
reference to the applicable warrant agreement. The specific terms of the
warrants, and the extent to which the general terms described in this section
apply to those warrants, will be set forth in the applicable prospectus
supplement.
Debt Warrants
The prospectus supplement
relating to a particular issue of debt warrants will describe the terms of such
debt warrants, including the following:
·
the title of
such debt warrants;
·
the offering
price for such debt warrants, if any;
·
the aggregate
number of such debt warrants;
·
the
designation and terms of the debt securities purchasable upon exercise of such
debt warrants;
35
·
if
applicable, the designation and terms of the debt securities with which such
debt warrants are issued and the number of such debt warrants issued with each
such debt security;
·
if
applicable, the date from and after which such debt warrants and any debt
securities issued therewith will be separately transferable;
·
the principal
amount of debt securities purchasable upon exercise of a debt warrant and the
price at which such principal amount of debt securities may be purchased upon
exercise (which price may be payable in cash, securities, or other property);
·
the date on
which the right to exercise such debt warrants shall commence and the date on
which such right shall expire;
·
if
applicable, the minimum or maximum amount of such debt warrants that may be
exercised at any one time;
·
whether the
debt warrants represented by the debt warrant certificates or debt securities
that may be issued upon exercise of the debt warrants will be issued in
registered or bearer form;
·
information
with respect to book-entry procedures, if any;
·
the currency
or currency units in which the offering price, if any, and the exercise price
are payable;
·
if
applicable, a discussion of principal United States and Canadian federal income
tax considerations;
·
the
anti-dilution or adjustment provisions of such debt warrants, if any;
·
the
redemption or call provisions, if any, applicable to such debt warrants; and
·
any
additional terms of such debt warrants, including terms, procedures, and
limitations relating to the exchange and exercise of such debt warrants.
Share Warrants
The prospectus
supplement relating to any particular issue of common share warrants or
preferred share warrants will describe the terms of such warrants, including
the following:
·
the title of
such warrants;
·
the offering
price for such warrants, if any;
·
the aggregate
number of such warrants;
·
the
designation and terms of the common shares or series of preferred shares
purchasable upon exercise of such warrants;
·
if applicable,
the designation and terms of the offered securities with which such warrants
are issued and the number of such warrants issued with each such offered
security;
36
·
if
applicable, the date from and after which such warrants and any offered
securities issued therewith will be separately transferable;
·
the number of
common shares or preferred shares purchasable upon exercise of a warrant and
the price at which such shares may be purchased upon exercise;
·
the date on
which the right to exercise such warrants shall commence and the date on which
such right shall expire;
·
if
applicable, the minimum or maximum amount of such warrants that may be
exercised at any one time;
·
the currency
or currency units in which the offering price, if any, and the exercise price
are payable;
·
if
applicable, a discussion of principal United States and Canadian federal income
tax considerations;
·
the
anti-dilution provisions of such warrants, if any;
·
the redemption
or call provisions, if any, applicable to such warrants; and
·
any
additional terms of such warrants, including terms, procedures and limitations
relating to the exchange and exercise of such warrants.
Exercise of Warrants
A warrant will entitle
the holder to purchase for cash an amount of securities at an exercise price
that will be stated in, or that will be determinable as described in, the
applicable prospectus supplement.
Warrants may be exercised
at any time up to the close of business on the expiration date set forth in the
applicable prospectus supplement. After the close of business on the expiration
date, unexercised warrants will become void.
Warrants may be exercised
as set forth in the applicable prospectus supplement. Upon receipt of payment
and the warrant certificate properly completed and duly executed at the
corporate trust office of the warrant agent or any other office indicated in
the prospectus supplement, we will, as soon as practicable, forward the
securities purchasable upon such exercise. If less than all of the warrants
represented by such warrant certificate are exercised, a new warrant
certificate will be issued for the remaining warrants.
DESCRIPTION OF SHARE PURCHASE CONTRACTS
We may issue share
purchase contracts, representing contracts obligating holders to purchase from
or sell to us, and obligating us to purchase from or sell to the holders, a
specified number of our common shares or preferred shares, as applicable, at a
future date or dates. We will deliver an undertaking to the securities
regulatory authority in each of the provinces of Canada, except Québec, that we
will not distribute share purchase contracts to any member of the public in
Canada unless the prospectus supplement containing the specific terms of the
share purchase contracts to be distributed is first approved for filing by the
securities commissions or similar regulatory authorities in each of the
provinces of Canada where the share purchase contracts will be distributed.
The price per common
share or preferred share, as applicable, may be fixed at the time the share
purchase contracts are issued or may be determined by reference to a specific
formula contained in the share
37
purchase
contracts. We may issue share purchase contracts in accordance with applicable
laws and in such amounts and in as many distinct series as we wish.
The applicable prospectus
supplement may contain, where applicable, the following information about the
share purchase contracts issued under it:
·
whether the
share purchase contracts obligate the holder to purchase or sell, or both
purchase and sell, our common shares or preferred shares, as applicable, and
the nature and amount of each of those securities, or the method of determining
those amounts;
·
whether the
share purchase contracts are to be prepaid or not;
·
whether the
share purchase contracts are to be settled by delivery, or by reference or
linkage to the value or performance of our common shares or preferred shares;
·
any
acceleration, cancellation, termination or other provisions relating to the
settlement of the share purchase contracts; and
·
whether the
share purchase contracts will be issued in fully registered or global form.
The applicable prospectus
supplement will describe the terms of any share purchase contracts. The
preceding description and any description of share purchase contracts in the
applicable prospectus supplement does not purport to be complete and is subject
to and is qualified in its entirety by reference to the share purchase contract
agreement and, if applicable, collateral arrangements and depository
arrangements relating to such share purchase contracts.
DESCRIPTION OF UNITS
The following description
of the terms of the units sets forth certain general terms and provisions of
the units to which any prospectus supplement may relate. We will deliver an
undertaking to the securities regulatory authority in each of the provinces of
Canada, except Québec, that we will not distribute units comprised of
one or more of exchangeable preferred shares,
warrants, or share purchase contracts
separately to any member of
the public in Canada unless the offering is in connection with and forms part
of the consideration for an acquisition or merger transaction or unless the
prospectus supplement containing the specific terms of the units to be
distributed separately is first approved for filing by the securities
commissions or similar regulatory authorities in each of the provinces and
territories of Canada where the units will be distributed.
We may issue units
comprised of one or more of the other securities described in this prospectus
in any combination. Each unit will be issued so that the holder of the unit is
also the holder of each security included in the unit. Thus, the holder of a
unit will have the rights and obligations of a holder of each included
security. The unit agreement under which a unit is issued may provide that the
securities included in the unit may not be held or transferred separately, at
any time or at any time before a specified date.
The applicable prospectus
supplement may describe:
·
the
designation and terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be held or
transferred separately;
·
any
provisions for the issuance, payment, settlement, transfer or exchange of the
units or of the securities comprising the units; and
·
whether the
units will be issued in fully registered or global form.
38
The applicable prospectus
supplement will describe the terms of any units. The preceding description and
any description of units in the applicable prospectus supplement does not
purport to be complete and is subject to and is qualified in its entirety by
reference to the unit agreement and, if applicable, collateral arrangements and
depositary arrangements relating to such units.
39
PLAN OF DISTRIBUTION
We may issue the
securities offered by this prospectus for cash or other consideration:
·
to or through
underwriters, dealers, placement agents or other intermediaries, or
·
directly to
one or more purchasers, provided that applicable exemptions are available or
have been obtained.
The prospectus supplement
with respect to the securities being offered will set forth the terms of the
offering of the securities, including:
·
the name or
names of any underwriters, dealers or other placement agents,
·
the purchase
price of, and form of consideration for, the securities and the proceeds, if
any, to us from such sale or exchange,
·
any delayed
delivery arrangements,
·
any
underwriting discounts and other items constituting underwriters compensation,
·
any offering
price, and
·
any discounts
or concessions allowed or reallowed or paid to dealers and any securities
exchanges on which the securities may be listed.
Only underwriters named
in the prospectus supplement are deemed to be underwriters in connection with
the securities offered by that prospectus supplement.
Under agreements which
may be entered into by us, underwriters, dealers and agents who participate in
the distribution of securities may be entitled to indemnification by us against
certain liabilities, including liabilities under the U.S. Securities Act of
1933 and Canadian provincial securities legislation, or to contributions with
respect to payments which such underwriters, dealers or agents may be required
to make in respect thereof. The underwriters, dealers and agents with whom we
enter into agreements may be customers of, engage in transactions with or
perform services for us in the ordinary course of business.
In connection with any
offering of securities (excluding at-the-market distributions of equity
securities), the underwriters may over-allot or effect transactions which
stabilize or maintain the market price of the securities offered at a level
above that which might otherwise prevail in the open market. Such transactions,
if commenced, may be discontinued at any time.
No underwriter or dealer involved in any at-the-market distribution of
equity securities, no affiliate of such an underwriter or dealer and no person
or company acting jointly or in concert with such an underwriter or dealer has
over-allotted, or will over-allot, securities in connection with the
distribution or effect any other transactions that are intended to stabilize or
maintain the market price of the securities.
Without limiting the generality
of the foregoing, we also may issue some or all of the securities offered by
this prospectus in exchange for property, including securities or assets of
ours or of other companies which we may acquire in the future.
A
selling
securityholder
may offer securities using any of the methods described above through
underwriters, dealers or other placement agents or in direct sales. The applicable prospectus supplement will
describe the selling securityholders method of distribution, will name any
underwriter, dealer or other placement agent of the selling securityholder and
will describe the compensation to be paid to any of these parties. See Selling
Securityholders below.
40
SELLING SECURITYHOLDERS
Securities may be sold
under this prospectus by way of secondary offering by or for the account of our
securityholders who may include certain directors, executive officers,
employees or certain other holders of our securities. The prospectus supplement
for or including any offering of securities by selling securityholders will
include the following information:
·
the names of the selling securityholders;
·
the number of securities owned by each of the selling securityholders;
·
the number of securities being distributed for the accounts of the
selling securityholders;
·
the number of the securities of the Company of any class to be owned by
the selling securityholders after the distribution and the percentage that
number represents of the total number of securities of that class outstanding;
·
whether the securities are owned by the selling securityholder both of
record and beneficially, of record only, or beneficially only;
·
the date or dates the selling securityholder acquired the securities;
and
·
if the selling securityholder acquired any securities in the 12 months
preceding the date of the preliminary short form base shelf prospectus, the
cost thereof to the securityholder in the aggregate and on a per security
basis.
CERTAIN INCOME TAX CONSIDERATIONS
The applicable prospectus
supplement may describe the principal Canadian federal income tax
considerations generally applicable to investors described therein of
purchasing, holding and disposing of securities, including, in the case of an
investor who is not a resident of Canada, Canadian non-resident withholding tax
considerations.
The applicable prospectus
supplement may also describe certain U.S. federal income tax considerations
generally applicable to the purchase, holding and disposition of the securities
by an investor who is a United States person, including, to the extent
applicable, certain relevant U.S. federal income tax rules pertaining to
capital gains and ordinary income treatment, original issue discount, whether
or not we will be considered a passive foreign investment company (and if so,
the tax consequences to a United States shareholder), backup withholding and
the foreign tax credit, and any consequences relating to securities payable in
a currency other than U.S. dollars, issued at an original discount for U.S.
federal income tax purposes or containing early redemption provisions or other
special terms.
41
DOCUMENTS INCORPORATED BY REFERENCE
The following documents
filed by us with the securities commission or similar authority in each of the
provinces of Canada and filed with or furnished to the U.S. Securities and
Exchange Commission under the Securities Exchange Act of 1934, as amended, are
specifically incorporated by reference in this prospectus:
1.
the Annual Report on Form 20-F of
Old Hydrogenics for the year ended December 31, 2008, excluding the
financial statements and auditors report thereon;
2.
Amendment No. 1 to the Annual Report
on Form 20-F of Old Hydrogenics for the year ended December 31, 2008,
including the revised financial statements and auditors report thereon;
3.
the Annual Information form of Old
Hydrogenics dated March 24, 2009;
4.
the revised consolidated financial
statements of Old Hydrogenics as at and for the years ended December 31,
2008 and 2007, together with the auditors report thereon;
5.
managements discussion and analysis of
financial condition and results of operations of Old Hydrogenics as at and for
the years ended December 31, 2008 and 2007;
6.
the management proxy circular dated March 24,
2009 in connection with Old Hydrogenics annual and special meeting of
shareholders held on May 13, 2009;
7.
the material change report of Old
Hydrogenics dated June 15, 2009 in respect of the APIF Transaction;
8.
the management proxy circular dated June 25,
2009 in connection with of Old Hydrogenics special meeting of shareholders
held on July 27, 2009 in connection with the APIF Transaction (excluding
all documents incorporated by reference therein, other than items 3 through 7 referenced above);
9.
the material change report dated July 22,
2009 of Old Hydrogenics in respect of the termination of the manufacturing and
supply agreement dated August 9, 2006 between Old Hydrogenics and American
Power Conversion;
10.
the unaudited comparative interim
consolidated financial statements of Old Hydrogenics contained in the third
quarter report to the shareholders of the Offeror as at and for the nine months
ended September 30, 2009 and 2008;
11.
managements discussion and analysis of
financial condition and results of operations of Old Hydrogenics as at September 30,
2009 and for the nine months ended September 30, 2009 and 2008; and
12.
the material change report dated October 27,
2009 in respect of completion of the APIF Transaction.
Any documents of the types
referred to in paragraphs
1
through
12
above and any interim financial
statements, business acquisition reports or material change reports (excluding
confidential material change reports) filed by us with the securities
regulatory authorities in Canada or filed with or furnished to the SEC after
the date of this prospectus and prior to the termination of any offering of
securities hereunder shall be deemed to be incorporated by reference into this
prospectus. In addition, any report filed with or furnished to the SEC by us
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended, or submitted by us to the SEC pursuant to Rule 12g3-2(b) under
the Securities Exchange Act of 1934, as amended, after the date of this
prospectus shall be deemed to be incorporated by reference into this prospectus
and the registration statement of which this prospectus forms a part, if and to
the extent expressly provided in such report.
Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for the purposes of this prospectus to the
42
extent
that a statement contained herein, or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein, modifies or
supersedes that statement. The modifying or superseding statement need not
state that it has modified or superseded a prior statement or include any other
information set forth in the document that it modifies or supersedes. The
making of a modifying or superseding statement shall not be deemed an admission
for any purposes that the modified or superseded statement, when made,
constituted a misrepresentation, an untrue statement of a material fact or an
omission to state a material fact that is required to be stated or that is
necessary to make a statement not misleading in light of the circumstances in
which it was made. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
Notwithstanding the foregoing, no
document of APUC filed by it with the securities regulatory authorities in
Canada or filed with or furnished to the SEC on or after October 27, 2009
shall nor shall be deemed to be incorporated by reference into or constitute a
part of this prospectus, and we expressly disclaim any such incorporation by
reference or inclusion.
Upon a new annual
information form and new annual financial statements being filed with and,
accepted by the applicable securities regulatory authorities during the
currency of this prospectus, the previous annual information form, the previous
annual financial statements and all interim financial statements, material
change reports and information circulars filed prior to the commencement of the
then current fiscal year will be deemed no longer to be incorporated into this
prospectus for purposes of future offers and sales of securities hereunder.
A prospectus supplement
containing the specific terms of an offering of our securities will be
delivered to purchasers of such securities together with this prospectus and
will be deemed to be incorporated into this prospectus as of the date of such
prospectus supplement but only for purposes of the offering of securities
covered by that prospectus supplement.
When we update our
disclosure of interest coverage ratios by a prospectus supplement, the prospectus
supplement filed with applicable securities regulatory authorities that
contains the most recent updated disclosure of interest coverage ratios and any
prospectus supplement supplying any additional or updated information we may
elect to include (provided that such information does not describe a material
change that has not already been the subject of a material change report or a
prospectus amendment) will be delivered to purchasers of securities together
with this prospectus and will be deemed to be incorporated into this prospectus
as of the date of the prospectus supplement.
Information has been incorporated by reference in this
prospectus from documents filed with securities commissions or similar
authorities in Canada.
Copies of the documents incorporated herein by
reference may be obtained on request without charge from Lawrence E. Davis,
Chief Financial Officer, at 5985 McLaughlin Road, Mississauga, Ontario, Canada
L5R 1B8. Copies of documents that we have filed with the securities regulatory
authorities in Canada may be obtained over the Internet at the Canadian
Securities Administrators website at www.sedar.com.
We are subject to the
informational requirements of the Securities Exchange Act of 1934, as amended,
and in accordance therewith file or furnish reports and other information with
or to the SEC. Our recent SEC filings may be obtained over the Internet at the
SECs website at www.sec.gov. You may also read and copy any document we file
or furnish with or to the SEC at the public reference facilities maintained by
the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call
1-800-SEC-0330 for further information on the operations of the public
reference facilities and copying charges.
43
LEGAL MATTERS
Certain legal matters
relating to the securities offered by this short form base shelf prospectus
will be passed upon on our behalf by Torys LLP. As of the date hereof, the
lawyers of Torys LLP, directly or indirectly, in aggregate, own less than one
percent of our outstanding common shares.
EXPERTS
The revised consolidated
financial statements as of December 31, 2008 and 2007, and for each of the
years in the three year period ended December 31, 2008 and managements
assessment of effectiveness of internal control over financial reporting (which
is included in Managements Report on Internal Control Over Financial
Reporting) as of December 31, 2008, incorporated into this prospectus by
reference have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, Chartered Accountants, Royal Trust Tower, Suite 3000,
P.O. Box 82, 77 King Street West, Toronto, Ontario, Canada M5K 1G8,
given on the authority of said firm as experts in accounting and auditing.
AUDITORS, TRANSFER AGENTS AND REGISTRARS
Our auditors are
PricewaterhouseCoopers LLP, Chartered Accountants, Royal Trust Tower, Suite 3000,
P.O. Box 82, 77 King Street West, Toronto, Ontario, Canada M5K 1G8.
Our transfer agent and
registrar in Canada is CIBC Mellon Trust
Company at its principal office in Toronto, Ontario, Canada and the co-transfer
agent and co-registrar for our common shares in the United States is BNY Mellon
Shareowner Services at its offices in New York, New York.
STATUTORY RIGHTS OF WITHDRAWAL AND
RESCISSION
Securities
legislation in certain of the provinces of Canada provides purchasers with the
right to withdraw from an agreement to purchase securities. This right
may be exercised within two business days after receipt or deemed receipt
of a prospectus and any amendment. In several of the provinces, the securities
legislation further provides a purchaser with remedies for rescission or, in
some jurisdictions, revisions of the price or damages if the prospectus and any
amendment contains a misrepresentation or is not delivered to the purchaser,
provided that the remedies for rescission, revisions of the price or damages
are exercised by the purchaser within the time limit prescribed by the
securities legislation of the purchasers province. The purchaser should refer
to any applicable provisions of the securities legislation of the purchasers
province for the particulars of these rights or consult with a legal adviser.
44
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification of
Directors and Officers
Section 124 of the Canada Business Corporations
Act, or the CBCA, provides:
(1)
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A corporation may indemnify a director or officer of
the corporation, a former director or officer of the corporation or another
individual who acts or acted at the corporations request as a director or
officer, or an individual acting in a similar capacity, of another entity,
against all costs, charges and expenses, including an amount paid to settle
an action or satisfy a judgment, reasonably incurred by the individual in
respect of any civil, criminal, administrative, investigative or other
proceeding in which the individual is involved because of that association with
the corporation or other entity.
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(2)
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A corporation may advance moneys to a director,
officer or other individual for the costs, charges and expenses of a
proceeding referred to in subsection (1). The individual shall repay the
moneys if the individual does not fulfill the conditions of subsection (3).
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(3)
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A corporation may not indemnify an individual under
subsection (1) unless the individual: (a) acted honestly and in
good faith with a view to the best interests of the corporation, or, as the
case may be, to the best interests of the other entity for which the
individual acted as director or officer or in a similar capacity at the
corporations request; and (b) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty,
the individual had reasonable grounds for believing that the individuals
conduct was lawful.
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(4)
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A corporation may with the approval of a court,
indemnify an individual referred to in subsection (1), or advance moneys
under subsection (2), in respect of an action by or on behalf of the
corporation or other entity to procure a judgment in its favor, to which the
individual is made a party because of the individuals association with the
corporation or other entity as described in subsection (1) against all
costs, charges and expenses reasonably incurred by the individual in
connection with such action, if the individual fulfils the conditions set out
in subsection (3).
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(5)
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Despite subsection (1), an individual referred to in
that subsection is entitled to indemnity from the corporation in respect of
all costs, charges and expenses reasonably incurred by the individual in
connection with the defense of any civil, criminal, administrative,
investigative or other proceeding to which the individual is subject because
of the individuals association with the corporation or other entity as
described in subsection (1), if the individual seeking indemnity (a) was
not judged by the court or other competent authority to have committed any
fault or omitted to do anything that the individual ought to have done; and
(b) fulfils the conditions set out in subsection (3).
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(6)
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A corporation may purchase and maintain insurance
for the benefit of an individual referred to in subsection (1) against
any liability incurred by the individual (a) in the individuals
capacity as a director or officer of the corporation; or (b) in the
individuals capacity as a director or officer, or similar capacity, of
another entity, if the individual acts or acted in that capacity at the
corporations request.
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(7)
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A corporation, an individual or an entity referred
to in subsection (1) may apply to a court for an order approving an
indemnity under this section and the court may so order and make any further
order that it sees fit.
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(8)
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An applicant under subsection (7) shall give
the Director notice of the application and the Director is entitled to appear
and be heard in person or by counsel.
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(9)
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On an application under subsection (7) the
court may order notice to be given to any interested person and the person is
entitled to appear and be heard in person or by counsel.
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In accordance with the CBCA, the By-laws of
Hydrogenics Corporation (the Company) provide that:
Subject to the provisions of the CBCA, the Company
shall indemnify a director or officer, a former director or officer, or a
person who acts or acted at the Companys request as a director or officer of a
body corporate of which the Company is or was a shareholder or creditor (or a
person who undertakes or has undertaken any liability on behalf of the Company
or at the Companys request on behalf of any such body corporate), and such
director or officers heirs and legal representatives, against all costs,
charges and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which such director or officer is made a
party by reason of being or having been a director or officer of the Company or
such body corporate
II-1
(or by reason of having undertaken such liability);
and the Company shall with the approval of the court indemnify a person in
respect of an action by or on behalf of the Company or body corporate to
procure a judgment in its favor, to which such person is made a party by reason
of being or having been a director or an officer of the Company or body
corporate, against all costs, charges and expenses reasonably incurred by such
director or officer in connection with such action if in case such director or
officer:
(a)
acted honestly and in good faith with a view to the
best interests of the Company; and
(b)
in the case of a criminal or administrative action or
proceeding that is enforced by a monetary penalty, he had reasonable grounds
for believing that his conduct was lawful.
Notwithstanding the foregoing, the Company shall,
without requiring the approval of a court, indemnify any person referred to
above, in respect of an action by or on behalf of the Company or body corporate
to procure a judgment in its favor who has been substantially successful on the
merits in the defense of any civil, criminal or administrative action or
proceeding to which such person is made a party by reason of being or having
been a director or officer of the Company or body corporate, against all costs,
charges and expenses reasonably incurred by such person in respect of such
action or proceeding, provided that such person has satisfied the appropriate
conditions in (a) and (b) above.
The Company may also indemnify such person in such
other circumstances as the CBCA or law permits or requires. These provisions
shall be in addition to and not in substitution for any rights, immunities and
protections to which any director or officer is otherwise entitled.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the U.S. Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is therefore unenforceable.
The Company has entered into indemnification
agreements with each of its directors and officers (each an Indemnified Party)
pursuant to which the Company has agreed to indemnify and save harmless the
Indemnified Party (i) from and against all costs, charges and expenses reasonably
incurred by the Indemnified Party in respect of any civil, criminal,
administrative, investigative or other proceeding to which the Indemnified
Party is involved by reason of being or having been a director and/or officer;
and (ii) from and against all liabilities, damages, costs, charges and
expenses whatsoever that the Indemnified Party may sustain or incur as a result
of serving as a director and/or officer in respect of any act, matter, deed or
thing whatsoever made, done, committed, permitted or acquiesced in by the
Indemnified Party as a director and/or officer, whether before or after the
effective date of the indemnification agreement.
The indemnification provided to the Indemnified Party
is only available if the Indemnified Party meets the standards of conduct set
out in the applicable indemnification agreement, meaning that the Indemnified
Party acted honestly and in good faith with a view to the best interests of the
Company, and in the case of a criminal or administrative proceeding that is
enforced by a monetary penalty, the Indemnified Party had reasonable grounds
for believing that the Indemnified Partys conduct was lawful.
The Company has purchased liability insurance for the
benefit of itself and the directors and officers of the Company and certain
subsidiaries. Protection is provided to directors and officers for wrongful
acts, including any actual or alleged error, misstatement, misleading
statement, act, omission, neglect, or breach of duty by any director or officer
in his or her insured capacity. The insurance coverage has an annual policy
limit of US$20 million plus an additional US$10 million available to
directors and officers exclusively for non-indemnifiable claims. There is a
deductible per claim of US$500,000 for each indemnifiable securities claim and
US$250,000 for any other claim against the Company. There is no deductible for
non-indemnifiable claims made against directors and officers. The cost of this
insurance is approximately US$409,000 annually.
Item
9. Exhibits
The following exhibits have
been filed as part of the Registration Statement:
1.1*
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Form of Underwriting Agreement for Common
Shares, Preferred Shares, Debt Securities, Subscription Receipts, Warrants,
Share Purchase Contracts and/or Units.
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4.1
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Specimen Common Share Certificate (incorporated by
reference from Exhibit 4.1 to Amendment No. 5 to Old Hydrogenics
Registration Statement on Form F-1, File No. 333-42682, filed with
the Securities and Exchange Commission on October 23, 2000).
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3.1**
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Restated Articles of Incorporation of Hydrogenics
Corporation dated October 27, 2009.
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4.2*
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Form of Debt Securities Indenture.
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4.3*
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Form of Debt Security.
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4.4*
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Form of Subscription Receipt Agreement.
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4.5*
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Form of Warrant Agreement (Stock) (including
form of Warrant Certificate).
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II-2
4.6*
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Form of Warrant Agreement (Debt) (including
form of Warrant Certificate).
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4.7*
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Form of Share Purchase Contract.
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4.8*
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Form of Unit.
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4.9
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The Annual Information Form of Old Hydrogenics
dated March 24, 2009 (incorporated by reference from Exhibit 99.4
to Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File
No. 000-31815, submitted to the U.S. Securities and Exchange Commission
on March 26, 2009).
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4.10
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Revised consolidated financial statements of Old
Hydrogenics as at and for the years ended December 31, 2008 and 2007,
together with the auditors report thereon (incorporated by reference from
Amendment No. 1 to Old Hydrogenics Annual Report on Form 20-F File
No. 000-31815, submitted to the U.S. Securities and Exchange Commission
on August 12, 2009).
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4.11
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Managements discussion and analysis of financial
condition and results of operations of Old Hydrogenics as at and for the
years ended December 31, 2008 and 2007 (incorporated by reference from
Exhibit 99.3 to Old Hydrogenics Report of Foreign Private Issuer on
Form 6-K File No. 000-31815, submitted to the U.S. Securities and
Exchange Commission on March 26, 2009).
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4.12
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The management proxy circular dated March 24,
2009 in connection with Old Hydrogenics annual and special meeting of the
shareholders of Old Hydrogenics held on May 13, 2009 (incorporated by
reference from Exhibit 99.1 to Old Hydrogenics Report of Foreign
Private Issuer on Form 6-K File No. 000-31815, submitted to the
U.S. Securities and Exchange Commission on April 20, 2009).
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4.13
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The material change report of Old Hydrogenics dated
June 15, 2009 in respect of the APIF Transaction (incorporated by
reference from Exhibit 99.1 to Old Hydrogenics Report of Foreign
Private Issuer on Form 6-K File No. 000-31815, submitted to the
U.S. Securities and Exchange Commission on June 16, 2009).
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4.14
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The management proxy circular dated June 25,
2009 in connection with Old Hydrogenics special meeting of shareholders held
on July 27, 2009 in connection with the APIF Transaction (excluding all
documents incorporated by reference therein, other than Exhibits 4.9 through
4.13 referenced above) (incorporated by reference from Exhibit 99.1 to
Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File
No. 000-31815, submitted to the U.S. Securities and Exchange Commission
on June 29, 2009).
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4.15
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The material change report dated July 22, 2009
of Old Hydrogenics in respect of the termination of the manufacturing and
supply agreement dated August 9, 2006 between Old Hydrogenics and
American Power Conversion (incorporated by reference from Exhibit 99.2 to
Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File
No. 000-31815, submitted to the U.S. Securities and Exchange Commission
on July 22, 2009).
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4.16
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Unaudited comparative interim consolidated financial
statements of Old Hydrogenics contained in the third quarter report to
shareholders of Old Hydrogenics as at and for the nine months ended
September 30, 2009 and 2008 (incorporated by reference from
Exhibit 99.1 to Old Hydrogenics Report of Foreign Private Issuer on
Form 6-K File No. 000-31815, submitted to the U.S. Securities and
Exchange Commission on October 26, 2009).
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4.17
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Managements discussion and analysis of financial
condition and results of operations of Old Hydrogenics as at
September 30, 2009 and for the nine months ended September 30, 2009
and 2008 (incorporated by reference from Exhibit 99.2 to Old
Hydrogenics Report of Foreign Private Issuer on Form 6-K File
No. 000-31815, submitted to the U.S. Securities and Exchange Commission
on October 26, 2009).
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4.18
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The material change report dated October 26,
2009 in respect of completion of the APIF Transaction (incorporated by
reference from Exhibit 99.1 to Hydrogenics Corporations Report of
Foreign Private Issuer on Form 6-K File No. 000-31815, submitted to
the U.S. Securities and Exchange Commission on October 26, 2009).
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5.1*
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Opinion of Torys LLP
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12.1**
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Computation of Ratio of Earnings to Fixed Charges.
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23.1**
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Consent of PricewaterhouseCoopers LLP
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II-3
23.2*
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Consent of Torys LLP (contained in Exhibit 5.1)
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24.1**
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Powers of Attorney (included in Part II of this
Registration Statement)
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25.1*
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Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, of designated trustee under the
Indenture.
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To be filed by amendment or as an exhibit to a
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, including any Report of Foreign Private Issuer on
Form 6-K, and incorporated herein by reference if necessary or required
by the transaction.
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Filed herewith and incorporated herein by reference.
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II-4
Item
10. Undertakings
The undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective
registration statement;
(iii)
To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
provided
, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement or is contained in a form of prospectus filed pursuant
to Rule 424(b) that is part of this registration statement;
(2)
That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial
bona fide
offering thereof.
(3)
To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4)
To file a post-effective amendment to the
registration statement to include any financial statements required by Item
8.A. of Form 20-F at the start of any delayed offering or throughout a
continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act of 1933 need not
be furnished, provided, that the Registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant to
this paragraph (4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not
be filed to include financial statements and information required by Section 10(a)(3) of
the Securities Act of 1933 or Item 8.A. of Form 20-F if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.
(5)
That, for the purpose of determining liability under
the Securities Act to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by section 10(a) of
the Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration statement to which
that prospectus relates, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration
II-5
statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(6)
That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the initial
distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any preliminary prospectus or prospectus of the
undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
(iii)
The portion of any other free writing prospectus
relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned
registrant; and
(iv)
Any other communication that is an offer in the
offering made by the undersigned registrant to the purchaser.
The undersigned registrant hereby undertakes that, for
the purposes of determining any liability under the Securities Act of 1933,
each filing of the registrants annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial
bona
fide
offering thereof.
II-6
The undersigned registrant hereby undertakes to file
an application for the purpose of determining the eligibility of the trustee to
act under subsection (a) of section 310 of the Trust Indenture Act (Act)
in accordance with the rules and regulations prescribed by the Commission
under section 305(b)(2) of the Act.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form F-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Mississauga, Province of
Ontario, Country of Canada, on the 9th day of November, 2009.
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HYDROGENICS CORPORATION
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By:
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/s/ Daryl Wilson
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Daryl Wilson
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President and Chief Executive Officer
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and Director
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POWER OF
ATTORNEY
Each person whose signature appears below constitutes
and appoints each of Daryl Wilson and Lawrence E. Davis his or her true and
lawful attorney-in-fact and agent, each acting alone, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any or all amendments (including
post-effective amendments) to this Registration Statement, including any
subsequent registration statement for the same offering which may be filed
under Rule 462(b) under the Securities Act of 1933, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full power and authority to do and perform each and
every act and thing appropriate or necessary to be done in connection
therewith, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple
counterparts, each of which shall be deemed an original, but which taken
together shall constitute one instrument.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Daryl Wilson
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President and Chief
Executive
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November 9, 2009
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Daryl Wilson
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Officer (Principal
Executive Officer) and Director
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/s/ Lawrence E. Davis
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Chief Financial Officer
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November 9, 2009
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Lawrence E. Davis
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(Principal Financial
Officer)
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/s/ Jennifer Barber
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Vice President, Finance
and Corporate
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November 9, 2009
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Jennifer Barber
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Controller (Principal
Accounting Officer)
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/s/ Douglas Alexander
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Director
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November 9, 2009
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Douglas Alexander
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/s/ Mike Cardiff
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Director
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November 9, 2009
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Mike Cardiff
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/s/ Joseph Cargnelli
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Director
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November 9, 2009
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Joseph Cargnelli
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/s/ Henry J. Gnacke
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Henry J. Gnacke
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Director
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November 9, 2009
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II-8
/s/ V. James Sardo
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Director
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November 9, 2009
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V. James Sardo
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/s/ Norman M. Seagram
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Director
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November 9, 2009
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Norman M. Seagram
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II-9
AUTHORIZED
REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of
the Securities Act of 1933, the undersigned has signed this Registration
Statement, solely in the capacity of the duly authorized representative of
Hydrogenics Corporation in the United States, on November 9, 2009.
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HYDROGENICS USA, INC.
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By:
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/s/ Lawrence E. Davis
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Lawrence E. Davis
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Authorized Signatory
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II-10
EXHIBIT
INDEX
Exhibit No.
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Description
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1.1*
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Form of Underwriting Agreement for Common
Shares, Preferred Shares, Debt Securities, Subscription Receipts, Warrants,
Share Purchase Contracts and/or Units.
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3.1**
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Restated Articles of Incorporation of Hydrogenics Corporation
dated October 27, 2009.
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4.1
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Specimen Common Share Certificate (incorporated by
reference from Exhibit 4.1 to Amendment No. 5 to Old Hydrogenics
Registration Statement on Form F-1, File No. 333-42682, filed with
the Securities and Exchange Commission on October 23, 2000).
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4.2*
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Form of Debt Securities Indenture.
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4.3*
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Form of Debt Security.
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4.4*
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Form of Subscription Receipt Agreement.
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4.5*
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Form of Warrant Agreement (Stock) (including
form of Warrant Certificate).
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4.6*
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Form of Warrant Agreement (Debt) (including
form of Warrant Certificate).
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4.7*
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Form of Share Purchase Contract.
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4.8*
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Form of Unit.
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4.9
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The Annual Information Form of Old Hydrogenics
dated March 24, 2009 (incorporated by reference from Exhibit 99.4
to Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File No. 000-31815,
submitted to the U.S. Securities and Exchange Commission on March 26,
2009).
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4.10
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Revised consolidated financial statements of Old
Hydrogenics as at and for the years ended December 31, 2008 and 2007,
together with the auditors report thereon (incorporated by reference from
Amendment No. 1 to Old Hydrogenics Annual Report on Form 20-F File
No. 000-31815, submitted to the U.S. Securities and Exchange Commission
on August 12, 2009).
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4.11
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Managements discussion and analysis of financial
condition and results of operations of Old Hydrogenics as at and for the
years ended December 31, 2008 and 2007 (incorporated by reference from Exhibit 99.3
to Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File No. 000-31815,
submitted to the U.S. Securities and Exchange Commission on March 26,
2009).
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4.12
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The management proxy circular dated March 24,
2009 in connection with Old Hydrogenics annual and special meeting of the
shareholders of Old Hydrogenics held on May 13, 2009 (incorporated by
reference from Exhibit 99.1 to Old Hydrogenics Report of Foreign
Private Issuer on Form 6-K File No. 000-31815, submitted to the
U.S. Securities and Exchange Commission on April 20, 2009).
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4.13
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The material change report of Old Hydrogenics dated June 15,
2009 in respect of the APIF Transaction (incorporated by reference from Exhibit 99.1
to Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File No. 000-31815,
submitted to the U.S. Securities and Exchange Commission on June 16,
2009).
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4.14
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The management proxy circular dated June 25,
2009 in connection with Old Hydrogenics special meeting of shareholders held
on July 27, 2009 in connection with the APIF Transaction (excluding all
documents incorporated by reference therein, other than Exhibits 4.9 through
4.13 referenced above) (incorporated by reference from Exhibit 99.1 to
Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File No. 000-31815,
submitted to the U.S. Securities and Exchange Commission on June 29,
2009).
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4.15
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The material change report dated July 22, 2009
of Old Hydrogenics in respect of the termination of the manufacturing and
supply agreement dated August 9, 2006 between Old Hydrogenics and
American Power Conversion (incorporated by reference from Exhibit 99.2
to Old Hydrogenics Report of Foreign Private Issuer on Form 6-K File No. 000-31815,
submitted to the U.S. Securities and Exchange Commission on July 22,
2009).
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4.16
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Unaudited comparative interim consolidated financial
statements of Old Hydrogenics contained in the third quarter report to
shareholders of Old Hydrogenics as at and for the nine months ended September 30,
2009 and 2008 (incorporated by reference from Exhibit 99.1 to Old
Hydrogenics Report of Foreign Private Issuer on Form 6-K File No. 000-31815,
submitted to the U.S. Securities and Exchange Commission on October 26,
2009).
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4.17
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Managements discussion and analysis of financial
condition and results of operations of Old Hydrogenics as at September 30,
2009 and for the nine months ended September 30, 2009 and 2008
(incorporated by reference from Exhibit 99.2 to Old Hydrogenics Report
of Foreign Private Issuer on Form 6-K File No. 000-31815, submitted
to the U.S. Securities and Exchange Commission on October 26, 2009).
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4.18
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The material change report dated October 26,
2009 in respect of completion of the APIF Transaction (incorporated by
reference from Exhibit 99.1 to Hydrogenics Corporations Report of
Foreign Private Issuer on Form 6-K File No. 000-31815, submitted to
the U.S. Securities and Exchange Commission on October 26, 2009).
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5.1*
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Opinion of Torys LLP
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12.1**
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Computation of Ratio of Earnings to Fixed Charges.
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23.1**
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Consent of PricewaterhouseCoopers LLP
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23.2*
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Consent of Torys LLP (contained in Exhibit 5.1)
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24.1**
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Powers of Attorney (included in Part II of this
Registration Statement)
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25.1*
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Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, of designated trustee under the
Indenture.
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*
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To be filed by amendment or as an exhibit to a
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, including any Report of Foreign Private Issuer on Form 6-K,
and incorporated herein by reference if necessary or required by the
transaction.
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**
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Filed herewith and incorporated herein by reference.
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