SECURITIES AND EXCHANGE COMMISSION
FORM 40-F
| | | |
| o | | REGISTRATION STATEMENT PURSUANT TO SECTION 12(B) OR (G) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
| | | |
| þ | | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 |
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2007
COMMISSION FILE NUMBER 000-31815
HYDROGENICS CORPORATION
(Exact name of Registrant as specified in its charter)
Canada
(Province or other jurisdiction of incorporation or organization)
3629
(Primary Standard Industrial Classification Code Number (if applicable))
Not applicable
(I.R.S. Employer Identification Number (if applicable))
5985 McLaughlin Road, Mississauga, Ontario, Canada L5R 1B8, (905) 361-3660
(Address and telephone number of Registrant’s principal executive offices)
CT Corporation System, 111 Eighth Avenue, New York, New York 10011, (212) 894-8400
(Name, address (including zip code) and telephone number (including area
code) of agent for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act: Common shares
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None.
For annual reports, indicate by check mark the information filed with this Form
þ Annual informationþ Audited annual financial information
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report
At December 31, 2007, 91,765,691 common shares were issued and outstanding Indicate by check mark whether the Registrant by filing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934 (the “Exchange Act”). If “Yes” is marked, indicate the file number assigned to the Registrant in connection with such Rule.
Yeso Noþ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yesþ Noo
TABLE OF CONTENTS
EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES
As of the end of the period covered by this Annual Report on Form 40-F, an evaluation was carried out by our management, under the supervision, and with the participation, of our Chief Executive Officer (the “CEO”) and Chief Financial Officer (the “CFO”), of the effectiveness of our disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)). Based on that evaluation, the CEO and CFO concluded that such disclosure controls and procedures were effective and designed to ensure that material information relating to us and our consolidated subsidiaries would be made known to them by others within those entities.
EVALUATION OF INTERNAL CONTROLS
Management of Hydrogenics Corporation (the “Corporation”) is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is a process designed by, or under the supervision of, the President and CEO and the CFO and effected by the Board of Directors, management and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
Due to its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of the effectiveness of internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
Management assessed the effectiveness of the Corporation’s internal control over financial reporting as at December 31, 2007, based on the criteria set forth in Internal Control – Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on this assessment, management believes that, as at December 31, 2007, the Corporation’s internal control over financial reporting is effective. Also, management determined that there were no material weaknesses in the Corporation’s internal control over financial reporting as at December 31, 2007.
CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING
During the year ended December 31, 2007, there were no changes in our internal control over financial reporting that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
IDENTIFICATION OF THE AUDIT COMMITTEE
We have a separately-designated audit committee established in accordance with section 3(a)(58)(A) of the Securities Exchange Act of 1934. Our audit committee is comprised of three independent members: Douglas Alexander, V. James Sardo and Norman M. Seagram.
- 2 -
AUDIT COMMITTEE FINANCIAL EXPERT
Our board of directors has determined that it has at least one audit committee financial expert serving on its audit committee. Douglas Alexander has been determined to be an audit committee financial expert and is independent, as that term is defined by the Nasdaq Global Market’s listing standards. The U.S. Securities and Exchange Commission has indicated that the designation of this individual as an audit committee financial expert does not make him an “expert” for any purpose, or impose any duties, obligations or liabilities that are greater than those imposed on members of the audit committee and board of directors who do not carry this designation or affect the duties, obligations or liabilities of any other member of the audit committee or board of directors.
DISCLOSURE PURSUANT TO THE REQUIREMENTS OF NASDAQ
We are a foreign private issuer and our common shares are listed on the NASDAQ Global Market (“NASDAQ”). NASDAQ Rule 4350(a)(1) permits a foreign private issuer to follow its home country practice in lieu of the requirements of Rule 4350, provided, however, that such an issuer shall: comply with Rules 4350(b)(1)(B), 4350(j) and 4350(m), have an audit committee that satisfies Rule 4350(d)(3), and ensure that such audit committee’s members meet the independence requirements in Rule 4350(d)(2)(A)(ii). We are intending not to follow Rule 4350(f) (shareholder quorum) but instead to follow the practice described below.
Shareholder Meeting Quorum Requirements: The NASDAQ minimum quorum requirement under Rule 4350(f) for a shareholder meeting is 33-1/3% of the outstanding shares of common stock. In addition, a company listed on NASDAQ is required to state its quorum requirement in its By-Laws. Our Board of Directors approved, by a resolution effective March 7, 2008, an amendment to Section 5.04 of By-Law No. 4 in relation to the quorum requirement for the transaction of business at shareholders’ meetings. The amendment must also be approved by our shareholders at our annual and special meeting, failing which the amendment will cease to be effective. However, such amendment remains in effect until the resolution is considered by shareholders. The amendment provides that Section 5.04 of By-Law No. 4 be deleted in its entirety and replaced by the following: A quorum for a meeting of our shareholders shall be two persons present in person or represented by proxy holding in the aggregate not less than 25% of the outstanding shares of the Corporation entitled to vote at the meeting.
We believe the foregoing is consistent with Canadian public companies and consistent with corporate governance best practices in Canada.
CODE OF ETHICS
We have adopted a written Code of Business Conduct and Ethics (the “Code”) which governs the behavior of our directors, officers, and employees. The Code also includes provisions required by theSarbanes-Oxley Act of 2002that are applicable to our CEO, CFO and other senior financial officers. The board, through the Nomination and Corporate Governance Committee, oversees compliance with the Code. Any amendments to, or waivers from, any provisions of the Code will be publicly disclosed. The Code is accessible on our investor relations web page at www.hydrogenics.com.
PRINCIPAL ACCOUNTANTS FEES AND SERVICES
The following table sets forth the total remuneration that was paid by us and our subsidiaries to our independent accountants, PricewaterhouseCoopers LLP, in each of our previous two fiscal years:
| | | | | | | | | |
| | | 2006 | | | 2007 | |
| | | (in thousands) | |
| | | (unaudited) | |
| Audit fees | | $ | 467,301 | | | $ | 618,398 | |
| Audit-related fees | | | 33,884 | | | | 40,992 | |
| Tax fees | | | 11,672 | | | | 15,596 | |
| All other fees | | | 57,063 | | | | 23,428 | |
| | | | | | | |
| | | | | | | | | |
| Total | | $ | 569,920 | | | $ | 698,413 | |
| | | | | | | |
Audit Fees
These fees include professional services rendered by the external auditors for the review of interim financial statements, statutory audits of annual financial statements, consultations about financial and reporting standards and other regulatory audits and filings, including Sarbanes-Oxley compliance.
- 3 -
Audit-related fees
These fees include professional services that reasonably relate to the above services and related to Canadian Public Accounting Board Fees.
Tax fees
These fees include professional services for tax compliance, tax advice, tax planning and advisory services relating to the preparation of corporate tax returns.
- 4 -
Other fees
These fees include professional services with regard to advisory services related to the windup of our fuel cell test equipment business and transfer pricing consultation.
Our audit committee approved all audit and non-audit services provided to us and to our subsidiaries during the periods listed above. Our audit committee has adopted pre-approval policies and procedures to ensure that all services provided by the auditor are approved in advance by the audit committee or are approved by the chair of the audit committee and subsequently reported to the committee as a whole at the following meeting of the committee.
OFF-BALANCE SHEET ARRANGEMENTS
The disclosure provided under the heading “2007 Management’s Discussion and Analysis of Financial Condition and Results of Operations – Contingent Off-balance Sheet Arrangements and Contractual Obligations” on page 16 of Exhibit 99.2 hereto (2007 Management’s Discussion and Analysis of Financial Condition and Results of Operations) is incorporated by reference herein.
TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS
The disclosure provided under the heading “2007 Management’s Discussion and Analysis of Financial Condition and Results of Operations – Contingent Off-balance Sheet Arrangements and Contractual Obligations” on page 16 of Exhibit 99.2 hereto (2007 Management’s Discussion and Analysis of Financial Condition and Results of Operations) is incorporated by reference herein.
UNDERTAKING
The registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Securities and Exchange Commission staff, and to furnish promptly, when requested to do so by the Securities and Exchange Commission staff, information relating to: the securities registered pursuant to Form 40-F; the securities in relation to which the obligation to file an annual report on Form 40-F arises; or transactions in said securities.
CONSENT TO SERVICE OF PROCESS
The Company has previously filed a Form F-X in connection with the class of securities in relation to which the obligation to file this report arises.
Any change to the name or address of the agent for service of process of the registrant shall be communicated promptly to the Securities and Exchange Commission by an amendment to the Form F-X referencing the file number of the registrant.
- 5 -
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant hereby certifies that it meets all of the requirements for filing on Form 40-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
| | | | | |
| | HYDROGENICS CORPORATION
| |
| | By: | /s/ Daryl Wilson | |
| | | Daryl Wilson | |
| | | President, Chief Executive Officer and Director | |
| |
Date: March 7, 2008
- 6 -
EXHIBITS
| | | |
| Exhibit | | Description |
| | | |
| 99.1 | | Consolidated Financial Statements for the Year Ended December 31, 2007. |
| | | |
| 99.2 | | 2007 Management’s Discussion and Analysis of Financial Condition and Results of Operations. |
| | | |
| 99.3 | | Annual Information Form for the Year Ended December 31, 2007. |
| | | |
| 99.4 | | Consent of PricewaterhouseCoopers LLP. |
| | | |
| 99.5 | | Certification of Chief Executive Officer of the Registrant pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| | | |
| 99.6 | | Certification of Chief Financial Officer of the Registrant pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. |
| | | |
| 99.7 | | Certification of Chief Executive Officer of the Registrant pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
| | | |
| 99.8 | | Certification of Chief Financial Officer of the Registrant pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. |
