AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2,
2020
REGISTRATION
NO. 333-__________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
SunHydrogen,
Inc.
(Exact
name of registrant as specified in its charter)
Nevada
(State
or other jurisdiction of
incorporation
or organization)
26-4298300
I.R.S.
Employer Identification Number
10 E.
Yanonali, Suite 36
Santa
Barbara, CA 93101
(805)
966-6566
(Address,
including zip code, and telephone number, including area code of
registrant’s principal executive offices)
Timothy
Young
Chief
Executive Officer
SunHydrogen,
Inc.
10 E.
Yanonali, Suite 36
Santa
Barbara, CA 93101
(805)
966-6566
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies
to:
Gregory
Sichenzia, Esq.
Sichenzia
Ross Ference LLP
1185
Avenue of the Americas, 37th Floor
New
York, New York 10036
Phone:
212-930-9700
Approximate
date of commencement of proposed sale to the public: From time to
time 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: ☐
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, other than securities offered only in
connection with dividend or interest reinvestment plants, check the
following box: ☒
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 and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. ☐
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.
☐
If
this Form is a registration statement pursuant to General
Instruction I.D. 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.
☐
If
this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following box.
☐
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer”, “smaller reporting
company” and “emerging growth company” in Rule 12b-2 of the
Exchange Act:
|
Large
accelerated filer |
☐ |
Accelerated
filer |
☐ |
| Non-accelerated
filer |
☒ |
Smaller
reporting company |
☒ |
|
|
Emerging
growth company |
☐ |
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of Securities Act. ☐
CALCULATION
OF REGISTRATION FEE
| |
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Proposed |
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Proposed |
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| |
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|
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maximum |
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maximum |
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|
|
| |
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Amount |
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|
offering |
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|
aggregate |
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Amount of |
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|
to
be |
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|
price |
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|
offering |
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|
registration |
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Title of each class of Securities to be registered |
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registered(1) |
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per unit |
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|
price
(2) |
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fee(3) |
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| Common stock, par value $0.001
per share |
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— |
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|
|
— |
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|
|
— |
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|
|
— |
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| Preferred stock, par value $0.001
per share |
|
|
— |
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|
|
— |
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|
|
— |
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|
|
— |
|
| Warrants(4) |
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|
— |
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|
|
— |
|
|
|
— |
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— |
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| Units(5) |
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— |
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— |
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— |
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— |
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| Total |
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— |
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— |
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$ |
20,000,000 |
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$ |
2,596 |
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(1) |
There
are being registered hereunder such indeterminate number of shares
of common stock, preferred stock, and warrants to purchase common
stock or preferred stock, as shall have an aggregate initial
offering price not to exceed $20,000,000. The securities registered
also include such indeterminate amounts and numbers of common stock
and preferred stock as may be issued upon conversion of or exchange
for preferred stock that provide for conversion or exchange, upon
exercise of warrants, or pursuant to the anti-dilution provisions
of any such securities. |
|
(2) |
In no
event will the aggregate offering price of all securities issued
from time to time pursuant to this registration statement exceed
$20,000,000. |
|
(3) |
Calculated
pursuant to Rule 457(o) under the Securities Act. The total amount
is being paid herewith. |
|
(4) |
Includes
any warrants to purchase common stock and any warrants to purchase
preferred stock. |
|
(5) |
Any
of the securities registered hereunder may be sold separately, or
as units with other securities registered hereby. We will determine
the proposed maximum offering price per unit when we issue the
above listed securities. The proposed maximum per unit and
aggregate offering prices per class of securities will be
determined from time to time by the registrant in connection with
the issuance by the registrant of the securities registered under
this registration statement and is not specified as to each class
of security pursuant to General Instruction II.D of Form S-3 under
the Securities Act. |
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 the Registration Statement shall become effective on such
date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement relating to these securities that has been filed with the
Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any State where the offer or sale
is not permitted.
(Subject to Completion, Dated July 2, 2020)
PROSPECTUS
$20,000,000
SunHydrogen,
Inc.
Common
Stock
Preferred
Stock
Warrants
Units
We
may from time to time, in one or more offerings at prices and on
terms that we will determine at the time of each offering, sell
common stock, preferred stock, warrants, or a combination of these
securities, or units, for an aggregate initial offering price of up
to $20,000,000. This prospectus describes the general manner in
which our securities may be offered using this prospectus. Each
time we offer and sell securities, we will provide you with a
prospectus supplement that will contain specific information about
the terms of that offering. Any prospectus supplement may also add,
update, or change information contained in this prospectus. You
should carefully read this prospectus and the applicable prospectus
supplement as well as the documents incorporated or deemed to be
incorporated by reference in this prospectus before you purchase
any of the securities offered hereby.
This
prospectus may not be used to offer and sell securities unless
accompanied by a prospectus supplement.
Our common stock is currently traded on the OTC Pink under the
symbol “HYSR.” On July 1, 2020, the last reported sales price for
our common stock was $0.029 per share. The prospectus supplement
will contain information, where applicable, as to any other listing
of the securities on the OTC Pink or any other securities market or
exchange covered by the prospectus supplement.
The
securities offered by this prospectus involve a high degree of
risk. See “Risk Factors” beginning on page 2, in addition to Risk
Factors contained in the applicable prospectus
supplement.
Neither
the Securities and Exchange Commission nor any State securities
commission 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.
We
may offer the securities directly or through agents or to or
through underwriters or dealers. If any agents or underwriters are
involved in the sale of the securities their names, and any
applicable purchase price, fee, commission or discount arrangement
between or among them, will be set forth, or will be calculable
from the information set forth, in an accompanying prospectus
supplement. We can sell the securities through agents, underwriters
or dealers only with delivery of a prospectus supplement describing
the method and terms of the offering of such securities. See “Plan
of Distribution.”
This
prospectus is dated ___________, 2020
Table
of Contents
You
should rely only on the information contained or incorporated by
reference in this prospectus or any prospectus supplement. We have
not authorized anyone to provide you with information different
from that contained or incorporated by reference into this
prospectus. If any person does provide you with information that
differs from what is contained or incorporated by reference in this
prospectus, you should not rely on it. No dealer, salesperson or
other person is authorized to give any information or to represent
anything not contained in this prospectus. You should assume that
the information contained in this prospectus or any prospectus
supplement is accurate only as of the date on the front of the
document and that any information contained in any document we have
incorporated by reference is accurate only as of the date of the
document incorporated by reference, regardless of the time of
delivery of this prospectus or any prospectus supplement or any
sale of a security. These documents are not an offer to sell or a
solicitation of an offer to buy these securities in any
circumstances under which the offer or solicitation is
unlawful.
ABOUT THIS
PROSPECTUS
This
prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or SEC, using a “shelf”
registration process. Under this shelf registration process, we may
sell any combination of the securities described in this prospectus
in one of more offerings up to a total dollar amount of proceeds of
$20,000,000. This prospectus describes the general manner in which
our securities may be offered by this prospectus. Each time we sell
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The
prospectus supplement may also add, update or change information
contained in this prospectus or in documents incorporated by
reference in this prospectus. The prospectus supplement that
contains specific information about the terms of the securities
being offered may also include a discussion of certain U.S. Federal
income tax consequences and any risk factors or other special
considerations applicable to those securities. To the extent that
any statement that we make in a prospectus supplement is
inconsistent with statements made in this prospectus or in
documents incorporated by reference in this prospectus, you should
rely on the information in the prospectus supplement. You should
carefully read both this prospectus and any prospectus supplement
together with the additional information described under “Where You
Can Find More Information” before buying any securities in this
offering.
The
terms “SunHydrogen,” the “Company,” “we,” “our” or “us” in this
prospectus refer to SunHydrogen, Inc., unless the context suggests
otherwise.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents and information incorporated by
reference in this prospectus include forward-looking statements.
These forward-looking statements involve risks and uncertainties,
including statements regarding our capital needs, business strategy
and expectations. Any statements that are not of historical fact
may be deemed to be forward-looking statements. In some cases you
can identify forward-looking statements by terminology such as
“may,” “will,” “should,” “expect,” “plan,” “intend,” “anticipate,”
“believe,” “estimate,” “predict,” “potential,” or “continue”, the
negative of the terms or other comparable terminology. Actual
events or results may differ materially from the anticipated
results or other expectations expressed in the forward-looking
statements. In evaluating these statements, you should consider
various factors, including the risks set forth under “Risk Factors”
herein and in the documents incorporated herein by reference. These
factors may cause our actual results to differ materially from any
forward-looking statements. We disclaim any obligation to publicly
update these statements, or disclose any difference between actual
results and those reflected in these statements, except as may be
required under applicable law.
ABOUT
SUNHYDROGEN
At
SunHydrogen, Inc., our goal is to replace most forms of energy on
earth with clean renewable hydrogen.
Our
patented low-cost technology is intended to produce renewable
hydrogen using sunlight and any source of water, including seawater
and wastewater. Unlike non-renewable hydrocarbon fuels, such as
oil, coal and natural gas, where carbon dioxide and other
contaminants are released into the atmosphere when used, hydrogen
fuel usage produces pure water as the only byproduct. By optimizing
the science of water electrolysis at the nano-level, our low-cost
nanoparticles mimic photosynthesis to efficiently use sunlight to
split water molecules into environmentally friendly renewable
hydrogen. Using our low-cost method to produce renewable hydrogen,
we intend to enable a world of distributed hydrogen production for
renewable electricity and hydrogen fuel cell vehicles.
Our
technology is primarily developed at the University of Iowa,
through a sponsored research agreement. Over the past several
years, our team has been focused on developing the technology to a
point at which it can be commercialized. After years of dedication,
we are now ready to move from the lab into commercial production
with the first generation of our technology.
Our
technology is packaged into a self-contained hydrogen production
panel that requires only sunlight and any source of water. Just
like solar panels convert sunlight into electricity, our hydrogen
panels will convert sunlight and water into hydrogen. As a result
of this form factor, the panels can be installed almost anywhere to
produce hydrogen fuel at or near the point of use. We believe that
this distributed model of hydrogen production addresses one of the
biggest challenges of the hydrogen economy, which is the
prohibitive high infrastructure cost of transporting hydrogen to
the points of use.
We
are currently working towards building 100 full sized hydrogen
panels driven by our first-generation technology for demonstration
purposes at multiple domestic and international
locations.
The
second generation of our panels will feature our patented low cost
nanoparticle-based technology where billions of autonomous solar
cells are electrodeposited onto porous alumina sheets and
manufactured in a roll to roll process and inserted into our
proprietary panels. We have received multiple patents on this
nanoparticle technology and we estimate that it can produce
hydrogen for less than $4 per kilogram before pressurization,
highly competitive with every form of hydrogen generation now in
existence.
We
believe we are still in the early stages of the hydrogen economy,
and yet, the market continues to grow exponentially. One of the
reasons for this growth is the adoption of hydrogen fuel
technologies within an increased number of major industries and
spanning many applications and governmental mandate for increasing
use of renewable energy. According to Grandview Research Report
released in June of 2018, the global hydrogen generation market
size is predicted to be valued at $180.2 billion by 2025.
Our
principal executive offices are located at 10 E. Yanonali, Suite
36, Santa Barbara, CA 93101. Our telephone number is (805)
966-6566. We maintain an Internet website at www.sunhydrogen.com.
The information contained on, connected to or that can be accessed
via our website is not part of this prospectus. We have included
our website address in this prospectus as an inactive textual
reference only and not as an active hyperlink.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Before making an
investment decision, you should consider carefully the risks,
uncertainties and other factors described in our most recent Annual
Report on Form 10-K, as supplemented and updated by subsequent
quarterly reports on Form 10-Q and current reports on Form 8-K that
we have filed or will file with the SEC, which are incorporated by
reference into this prospectus.
Our
business, affairs, prospects, assets, financial condition, results
of operations and cash flows could be materially and adversely
affected by these risks. For more information about our SEC
filings, please see “Where You Can Find More
Information”.
USE
OF PROCEEDS
Unless
otherwise indicated in a prospectus supplement, we intend to use
the net proceeds from the sale of the securities under this
prospectus for general corporate purposes, including working
capital.
DESCRIPTION OF COMMON
STOCK
General
We
are authorized to issue 5,000,000,000 shares of common stock,
$0.001 par value per share.
Holders
of the Company’s common stock are entitled to one vote for each
share on all matters submitted to a stockholder vote. Holders of
common stock do not have cumulative voting rights. Therefore,
holders of a majority of the shares of common stock voting for the
election of directors can elect all of the directors to our board
of directors. Holders of the Company’s common stock representing a
majority of the voting power of the Company’s common stock issued,
outstanding and entitled to vote, represented in person or by
proxy, are necessary to constitute a quorum at any meeting of
stockholders. A vote by the holders of a majority of the Company’s
outstanding shares is required to effectuate certain fundamental
corporate changes such as a liquidation, merger or an amendment to
the Company’s articles of incorporation
Subject
to the rights of preferred stockholders (if any), holders of the
Company’s common stock are entitled to share in all dividends that
the Board of Directors, in its discretion, declares from legally
available funds. In the event of a liquidation, dissolution or
winding up, each outstanding share entitles its holder to
participate pro rata in all assets that remain after payment of
liabilities and after providing for each class of stock, if any,
having preference over the common stock. The Company’s common stock
has no pre-emptive rights, no conversion rights, and there are no
redemption provisions applicable to the Company’s common
stock.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Worldwide
Stock Transfer, LLC.
Listing
Our
common stock is currently traded on the OTC Pink under the symbol
“HYSR”.
DESCRIPTION OF PREFERRED
STOCK
We
are authorized to issue up to 5,000,000 shares of preferred stock,
par value $0.001 per share, from time to time, in one or more
series. We do not have any outstanding shares of preferred
stock.
Our
articles of incorporation authorizes our board of directors to
issue preferred stock from time to time with such designations,
preferences, conversion or other rights, voting powers,
restrictions, dividends or limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption
as shall be determined by the board of directors for each class or
series of stock. Preferred stock is available for possible future
financings or acquisitions and for general corporate purposes
without further authorization of stockholders unless such
authorization is required by applicable law, or any securities
exchange or market on which our stock is then listed or admitted to
trading.
Our
board of directors may authorize the issuance of preferred stock
with voting or conversion rights that could adversely affect the
voting power or other rights of the holders of common stock. The
issuance of preferred stock, while providing flexibility in
connection with possible acquisitions and other corporate purposes
could, under some circumstances, have the effect of delaying,
deferring or preventing a change-in-control of the
Company.
A
prospectus supplement relating to any series of preferred stock
being offered will include specific terms relating to the offering.
Such prospectus supplement will include:
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the
title and stated or par value of the preferred stock; |
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the
number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred
stock; |
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the
dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to the preferred stock; |
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whether
dividends shall be cumulative or non-cumulative and, if cumulative,
the date from which dividends on the preferred stock shall
accumulate; |
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the
provisions for a sinking fund, if any, for the preferred
stock; |
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any
voting rights of the preferred stock; |
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the
provisions for redemption, if applicable, of the preferred
stock; |
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any
listing of the preferred stock on any securities
exchange; |
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the
terms and conditions, if applicable, upon which the preferred stock
will be convertible into our common stock, including the conversion
price or the manner of calculating the conversion price and
conversion period; |
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if
appropriate, a discussion of Federal income tax consequences
applicable to the preferred stock; and |
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any
other specific terms, preferences, rights, limitations or
restrictions of the preferred stock. |
The
terms, if any, on which the preferred stock may be convertible into
or exchangeable for our common stock will also be stated in the
preferred stock prospectus supplement. The terms will include
provisions as to whether conversion or exchange is mandatory, at
the option of the holder or at our option, and may include
provisions pursuant to which the number of shares of our common
stock to be received by the holders of preferred stock would be
subject to adjustment.
DESCRIPTION OF
WARRANTS
We
may issue warrants for the purchase of preferred stock or common
stock. Warrants may be issued independently or together with any
preferred stock or common stock, and may be attached to or separate
from any offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between a
warrant agent specified in the agreement and us. The warrant agent
will act solely as our agent in connection with the warrants of
that series and will not assume any obligation or relationship of
agency or trust for or with any holders or beneficial owners of
warrants. This summary of some provisions of the securities
warrants is not complete. You should refer to the securities
warrant agreement, including the forms of securities warrant
certificate representing the securities warrants, relating to the
specific securities warrants being offered for the complete terms
of the securities warrant agreement and the securities warrants.
The securities warrant agreement, together with the terms of the
securities warrant certificate and securities warrants, will be
filed with the SEC in connection with the offering of the specific
warrants.
The
applicable prospectus supplement will describe the following terms,
where applicable, of the warrants in respect of which this
prospectus is being delivered:
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the
title of the warrants; |
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the
aggregate number of the warrants; |
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the
price or prices at which the warrants will be issued; |
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the
designation, amount and terms of the offered securities purchasable
upon exercise of the warrants; |
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if
applicable, the date on and after which the warrants and the
offered securities purchasable upon exercise of the warrants will
be separately transferable; |
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the
terms of the securities purchasable upon exercise of such warrants
and the procedures and conditions relating to the exercise of such
warrants; |
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any
provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or the exercise price of
the warrants; |
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the
price or prices at which and currency or currencies in which the
offered securities purchasable upon exercise of the warrants may be
purchased; |
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the
date on which the right to exercise the warrants shall commence and
the date on which the right shall expire; |
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the
minimum or maximum amount of the warrants that may be exercised at
any one time; |
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information
with respect to book-entry procedures, if any; |
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if
appropriate, a discussion of Federal income tax consequences;
and |
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any
other material terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants. |
Warrants
for the purchase of common stock or preferred stock will be offered
and exercisable for U.S. dollars only. Warrants will be issued in
registered form only.
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 applicable prospectus
supplement, we will, as soon as practicable, forward the purchased
securities. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will
be issued for the remaining warrants.
Prior
to the exercise of any securities warrants to purchase preferred
stock or common stock, holders of the warrants will not have any of
the rights of holders of the common stock or preferred stock
purchasable upon exercise, including in the case of securities
warrants for the purchase of common stock or preferred stock, the
right to vote or to receive any payments of dividends on the
preferred stock or common stock purchasable upon
exercise.
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue
units consisting of shares of common stock, shares of preferred
stock or warrants or any combination of such securities.
The
applicable prospectus supplement will specify the following terms
of any units in respect of which this prospectus is being
delivered:
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● |
the
terms of the units and of any of the common stock, preferred stock
and warrants comprising the units, including whether and under what
circumstances the securities comprising the units may be traded
separately; |
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a
description of the terms of any unit agreement governing the units;
and |
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● |
a
description of the provisions for the payment, settlement, transfer
or exchange of the units. |
PLAN OF
DISTRIBUTION
We
may sell the securities offered through this prospectus (i) to
or through underwriters or dealers, (ii) directly to
purchasers, including our affiliates, (iii) through agents, or
(iv) through a combination of any these methods. The securities may
be distributed at a fixed price or prices, which may be changed,
market prices prevailing at the time of sale, prices related to the
prevailing market prices, or negotiated prices. The prospectus
supplement will include the following information:
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the
terms of the offering; |
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the
names of any underwriters or agents; |
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the
name or names of any managing underwriter or
underwriters; |
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the
purchase price of the securities; |
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any
over-allotment options under which underwriters may purchase
additional securities from us; |
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the
net proceeds from the sale of the securities; |
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any
delayed delivery arrangements; |
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any
underwriting discounts, commissions and other items constituting
underwriters’ compensation; |
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any
initial public offering price; |
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any
discounts or concessions allowed or reallowed or paid to
dealers; |
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any
commissions paid to agents; and |
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any
securities exchange or market on which the securities may be
listed. |
Sale
Through Underwriters or Dealers
Only
underwriters named in the prospectus supplement are underwriters of
the securities offered by the prospectus supplement.
If
underwriters are used in the sale, the underwriters will acquire
the securities for their own account, including through
underwriting, purchase, security lending or repurchase agreements
with us. The underwriters may resell the securities from time to
time in one or more transactions, including negotiated
transactions. Underwriters may sell the securities in order to
facilitate transactions in any of our other securities (described
in this prospectus or otherwise), including other public or private
transactions and short sales. Underwriters may offer securities to
the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more firms
acting as underwriters. Unless otherwise indicated in the
prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and
the underwriters will be obligated to purchase all the offered
securities if they purchase any of them. The underwriters may
change from time to time any initial public offering price and any
discounts or concessions allowed or reallowed or paid to
dealers.
If
dealers are used in the sale of securities offered through this
prospectus, we will sell the securities to them as principals. They
may then resell those securities to the public at varying prices
determined by the dealers at the time of resale. The prospectus
supplement will include the names of the dealers and the terms of
the transaction.
Direct
Sales and Sales Through Agents
We
may sell the securities offered through this prospectus directly.
In this case, no underwriters or agents would be involved. Such
securities may also be sold through agents designated from time to
time. The prospectus supplement will name any agent involved in the
offer or sale of the offered securities and will describe any
commissions payable to the agent. Unless otherwise indicated in the
prospectus supplement, any agent will agree to use its reasonable
best efforts to solicit purchases for the period of its
appointment.
We
may sell the securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any sale of those securities.
The terms of any such sales will be described in the prospectus
supplement.
Delayed
Delivery Contracts
If
the prospectus supplement indicates, we may authorize agents,
underwriters or dealers to solicit offers from certain types of
institutions to purchase securities at the public offering price
under delayed delivery contracts. These contracts would provide for
payment and delivery on a specified date in the future. The
contracts would be subject only to those conditions described in
the prospectus supplement. The applicable prospectus supplement
will describe the commission payable for solicitation of those
contracts.
Continuous
Offering Program
Without
limiting the generality of the foregoing, we may enter into a
continuous offering program equity distribution agreement with a
broker-dealer, under which we may offer and sell shares of our
common stock from time to time through a broker-dealer as our sales
agent. If we enter into such a program, sales of the shares of
common stock, if any, will be made by means of ordinary brokers’
transactions on the OTC Pink or other market on which are shares
may then trade at market prices, block transactions and such other
transactions as agreed upon by us and the broker-dealer. Under the
terms of such a program, we also may sell shares of common stock to
the broker-dealer, as principal for its own account at a price
agreed upon at the time of sale. If we sell shares of common stock
to such broker-dealer as principal, we will enter into a separate
terms agreement with such broker-dealer, and we will describe this
agreement in a separate prospectus supplement or pricing
supplement.
Market
Making, Stabilization and Other Transactions
Unless
the applicable prospectus supplement states otherwise, other than
our common stock, all securities we offer under this prospectus
will be a new issue and will have no established trading market. We
may elect to list offered securities on an exchange or in the
over-the-counter market. Any underwriters that we use in the sale
of offered securities may make a market in such securities, but may
discontinue such market making at any time without notice.
Therefore, we cannot assure you that the securities will have a
liquid trading market.
Any
underwriter may also engage in stabilizing transactions, syndicate
covering transactions and penalty bids in accordance with
Rule 104 under the Securities Exchange Act. Stabilizing
transactions involve bids to purchase the underlying security in
the open market for the purpose of pegging, fixing or maintaining
the price of the securities. Syndicate covering transactions
involve purchases of the securities in the open market after the
distribution has been completed in order to cover syndicate short
positions.
Penalty
bids permit the underwriters to reclaim a selling concession from a
syndicate member when the securities originally sold by the
syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Stabilizing transactions,
syndicate covering transactions and penalty bids may cause the
price of the securities to be higher than it would be in the
absence of the transactions. The underwriters may, if they commence
these transactions, discontinue them at any time.
General
Information
Agents,
underwriters, and dealers may be entitled, under agreements entered
into with us, to indemnification by us against certain liabilities,
including liabilities under the Securities Act. Our agents,
underwriters, and dealers, or their affiliates, may be customers
of, engage in transactions with or perform services for us, in the
ordinary course of business.
LEGAL
MATTERS
The
validity of the issuance of the securities offered by this
prospectus will be passed upon for us by Sichenzia Ross Ference
LLP, New York, New York.
EXPERTS
The
financial statements of SunHydrogen, Inc. as of and for the years
ended June 30, 2019 and June 30, 2018 appearing in SunHydrogen,
Inc.’s Annual Report on Form 10-K for the year ended June 30, 2019,
have been audited by Liggett & Webb, P.A., as set forth in its
report thereon, included therein, and incorporated herein by
reference. Such financial statements are incorporated herein by
reference in reliance upon such report given on the authority of
such firm as experts in accounting and auditing.
WHERE YOU CAN FIND
MORE INFORMATION
We
file annual, quarterly and special reports, along with other
information with the SEC. The SEC maintains an Internet site that
contains reports, proxy and information statements, and other
information regarding issuers that file electronically with the
SEC. Our SEC filings are available to the public over the Internet
at the SEC’s website at http://www.sec.gov.
This
prospectus is part of a registration statement on Form S-3 that we
filed with the SEC to register the securities offered hereby under
the Securities Act of 1933, as amended. This prospectus does not
contain all of the information included in the registration
statement, including certain exhibits and schedules. You may obtain
the registration statement and exhibits to the registration
statement from the SEC’s internet site.
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE
This
prospectus is part of a registration statement filed with the SEC.
The SEC allows us to “incorporate by reference” into this
prospectus the information that we file with them, which means that
we can disclose important information to you by referring you to
those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we
file later with the SEC will automatically update and supersede
this information. The following documents are incorporated by
reference and made a part of this prospectus:
|
● |
our
Annual Report on
Form 10-K for the year ended June 30, 2019 filed with the SEC
on September 30, 2019; |
| |
|
|
|
● |
our
Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 2019
filed with the SEC on November 15, 2019; |
| |
|
|
|
● |
our
Quarterly Report on
Form 10-Q for the quarterly period ended December 31, 2019
filed with the SEC on February 14, 2020; |
| |
|
|
|
● |
our
Quarterly Report on
Form 10-Q for the quarterly period ended March 31, 2020 filed
with the SEC on May 15, 2020; |
| |
|
|
|
● |
our
Current Reports on Form 8-K filed with the SEC on
August 12, 2019,
October 29, 2019,
November 5, 2019,
November 26, 2019,
January 3, 2020,
January 7, 2020,
January 16, 2020,
March 4, 2020,
June 4, 2020,
June 15, 2020,
June 23, 2020,
June 26, 2020; and |
| |
|
|
|
● |
the
description of our common stock contained in the our Registration
Statement on
Form 8-A filed with the SEC on June 14, 2011 (File No.
000-54437), including any amendment or report filed for the purpose
of updating such description. |
All
documents that we file with the SEC pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act subsequent to the date of
this registration statement and prior to the filing of a
post-effective amendment to this registration statement that
indicates that all securities offered under this prospectus have
been sold, or that deregisters all securities then remaining
unsold, will be deemed to be incorporated in this registration
statement by reference and to be a part hereof from the date of
filing of such documents.. Nothing in this prospectus shall be
deemed to incorporate information furnished but not filed with the
SEC (including without limitation, information furnished under Item
2.02 or Item 7.01 of Form 8-K, and any exhibits relating to such
information).
Any
statement contained in this prospectus or in a document
incorporated or deemed to be incorporated by reference in this
prospectus shall be deemed to be modified or superseded for
purposes of this prospectus to the extent that a statement
contained herein or in the applicable prospectus supplement or in
any other subsequently filed document which also is or is deemed to
be incorporated by reference modifies or supersedes the statement.
Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus.
The
information about us contained in this prospectus should be read
together with the information in the documents incorporated by
reference. You may request a copy of any or all of these filings,
at no cost, by writing or telephoning us at: Timothy Young, 10 E.
Yanonali, Suite 36, Santa Barbara, CA 93101, (805)
966-6566.
$20,000,000
Common
Stock
Preferred
Stock
Warrants
Units
SunHydrogen,
Inc.
Prospectus
,
2020
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution.
The
following table sets forth the costs and expenses payable by the
Registrant in connection with this offering, other than
underwriting commissions and discounts, all of which are estimated
except for the SEC registration fee.
|
SEC
registration fee |
|
$ |
2,596 |
|
| Printing |
|
|
* |
|
| Legal
fees and expenses |
|
$ |
* |
|
| Accounting
fees and expenses |
|
$ |
* |
|
| Trustees’
Fees and Expenses |
|
|
* |
|
| Warrant
Agent Fees and Expenses |
|
|
* |
|
|
Miscellaneous |
|
|
* |
|
|
Total |
|
$ |
* |
|
|
* |
These
fees are calculated based on the securities offered and the number
of issuances and accordingly cannot be estimated at this time. The
applicable prospectus supplement will set forth the estimated
amount of expenses of any offering of securities. |
Item 15.
Indemnification of Directors and Officers.
Neither
our Articles of Incorporation nor Bylaws prevent us from
indemnifying our officers, directors and agents to the extent
permitted under the Nevada Revised Statute (“NRS”). NRS Section
78.7502 provides that a corporation shall indemnify any director,
officer, employee or agent of a corporation against expenses,
including attorneys’ fees, actually and reasonably incurred by him
in connection with any defense to the extent that a director,
officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 78.7502(1) or 78.7502(2), or in
defense of any claim, issue or matter therein.
NRS
78.7502(1) provides that a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses, including attorneys’ fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he: (a) is not
liable pursuant to NRS 78.138; or (b) acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful.
NRS
Section 78.7502(2) provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against expenses, including amounts paid in settlement
and attorneys’ fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if
he: (a) is not liable pursuant to NRS 78.138; or (b) acted in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation. Indemnification
may not be made for any claim, issue or matter as to which such a
person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals there from, to be liable to the
corporation or for amounts paid in settlement to the corporation,
unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction
determines upon application that in view of all the circumstances
of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
NRS
Section 78.747 provides that except as otherwise provided by
specific statute, no director or officer of a corporation is
individually liable for a debt or liability of the corporation,
unless the director or officer acts as the alter ego of the
corporation. The court as a matter of law must determine the
question of whether a director or officer acts as the alter ego of
a corporation.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, we have been informed that,
in the opinion of the SEC, such indemnification is against public
policy as expressed in the Securities Act 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, we will, unless in the opinion of our counsel the
matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such
indemnification by us is against public policy as expressed hereby
in the Securities Act and we will be governed by the final
adjudication of such issue.
Item 16.
Exhibits.
|
Exhibit |
|
|
|
Number |
|
Description
of Document |
|
|
|
|
|
1.1 |
|
Form
of Underwriting Agreement.* |
|
4.1 |
|
Articles
of Incorporation of filed with the Nevada Secretary of State on
February 18, 2009 (incorporated by reference to Form S-1 filed on
February 5, 2010) |
|
4.2 |
|
Articles
of Amendment of Articles of Incorporation filed with the Nevada
Secretary of State on September 11, 2009 (incorporated by reference
to Form S-1 filed on February 5, 2010) |
|
4.3 |
|
Articles
of Amendment of Articles of Incorporation of filed with the Nevada
Secretary of State on November 21, 2013 (incorporated by reference
to Form 8-K filed on November 21, 2013) |
|
4.4 |
|
Articles
of Amendment of Articles of Incorporation filed with the Nevada
Secretary of State on September 13, 2018. (incorporated by
reference to the Company’s annual report on Form 10-K filed with
the Securities and Exchange Commission on September 25,
2018) |
|
4.5 |
|
Certificate
of Designation of Series B Preferred Stock (incorporated by
reference to 8-K filed November 26, 2019) |
|
4.6 |
|
Certificate
of Amendment to Articles of Incorporation (incorporated by
reference to 8-K filed January 3, 2020) |
|
4.7 |
|
Certificate
of Merger (incorporated by reference to 8-K filed June 15,
2020) |
|
4.8 |
|
Bylaws
(incorporated by reference to S-1 filed February 5,
2010) |
|
4.9 |
|
Form
of Certificate of Designation.* |
|
4.10 |
|
Form
of Preferred Stock Certificate.* |
|
4.11 |
|
Form
of Warrant Agreement.* |
|
4.12 |
|
Form
of Warrant Certificate.* |
|
4.13 |
|
Form
of Stock Purchase Agreement.* |
|
4.14 |
|
Form
of Unit Agreement.* |
|
5.1 |
|
Opinion
of Sichenzia Ross Ference LLP |
|
23.1 |
|
Consent
of Liggett & Webb, P.A. |
|
23.2 |
|
Consent
of Sichenzia Ross Ference LLP (contained in
Exhibit 5.1) |
|
* |
To be
filed by amendment or by a Current Report on Form 8-K and
incorporated by reference herein. |
Item 17.
Undertakings
(a) 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% 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, Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of
this section do not apply if the registration statement is on Form
S-3 or Form F-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in
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 the 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) That,
for the purpose of determining liability under the Securities Act
of 1933 to any purchaser:
(A) 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
(B) 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 of 1933 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 statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(5) That,
for the purpose of determining liability of the registrant under
the Securities Act of 1933 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.
(b) The
registrant hereby undertakes that for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s 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.
(c) 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 Act 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 Act and will be governed by the final adjudication of such
issue.
(d) The
registrant hereby undertakes that:
(1) For
purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b)(1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For
the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus
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.
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 S-3 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Santa
Barbara, State of California, on July 2, 2020.
| |
SunHydrogen,
Inc. |
|
|
|
|
| |
By: |
/s/
Timothy Young |
| |
|
Timothy
Young |
| |
Its: |
Chief
Executive Officer and
Acting Chief Financial Officer |
| |
|
(principal
executive, financial and accounting officer) |
Each
person whose signature appears below constitutes and appoints
Timothy Young, as his true and lawful attorney in fact and agent,
with full powers of substitution and re-substitution, for him and
in his name, place and stead, in any and all capacities, to sign
any or all amendments (including post effective amendments) to the
Registration Statement, and to sign any registration statement for
the same offering covered by this Registration Statement that is to
be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and all post effective
amendments thereto, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, each acting alone, full power and
authority to do and perform each and every act and thing requisite
and necessary to be done in and about the premises, as fully to all
intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and
agent, each acting alone, or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
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.
|
/s/
Timothy Young |
|
July
2, 2020 |
|
Timothy
Young |
|
|
Chief
Executive Officer, Acting Chief Financial Officer and Director
(principal executive, financial and accounting officer) |
|
|
|
|
|
|
|
/s/
Mark Richardson |
|
July
2, 2020 |
|
Mark
Richardson |
|
|
|
Director |
|
|
