The company on February 13, 2023, revealed it had filed a petition in the Delaware Court of Chancery, pursuant to Section 205 of the Delaware General Corporation Law (DGCL), to be issued a permit by the Court to ratify and validate “potentially defective corporate acts.”

On March 6, 2023, the Delaware Court held a hearing in the Section 205 Action. Hyzon today (March 9) revealed the Court, “orally granted the Company’s petition and, on the same day (March 6), the Court issued an order in the Section 205 Action granting the Company’s petition seeking to resolve any uncertainty with respect to those matters.”

It comes after a ruling by the Delaware Court of Chancery, which suggested that there was uncertainty as to whether Hyzon complied entirely with the DGCL when the company was incorporated in 2021.

According to an SEC filing by Hyzon, on July 15, 2021, Decarbonization Plus Acquisition Corporation (DCRB), the predecessor to Hyzon, held a special meeting of stockholders to approve certain matters relating to the business combination between DCRB and the then privately held Hyzon Motors Inc. (Old Hyzon).

The matters of that meeting included approval of the company’s Second Amended and Restated Certificate of Incorporation, including a proposal to increase the total number of authorised shares of DCRB’s Class A common stock, from 250,000,000 shares to 400,000,000 shares, and increase the number of DCRB’s preferred stock from 1,000,000 to 10,000,000 – known as the Authorised Share Charter Proposal.

Hyzon said, at the special meeting, all proposals including the Authorised Share Charter Proposal were approved by the affirmative vote of the holders of majority of the outstanding shares of Class A common stock and Class B common stock.

Following the DCRB meeting, on July 16, 2021, DCRB and Old Hyzon closed the business combination and DCRB changed its name to Hyzon Motors Inc.

The Court ruling raised uncertainty as to whether Section 242(b)(2) of the DGCL – a requirement for series specific approvals of a charter amendment – would have required the Authorised Share Charter proposal to be approved by a separate vote of the majority of DCRB’s then outstanding shares of Class A common stock.

The petition approval comes shortly ahead of a hearing with the Nasdaq Stock Market’s Hearing Panel on March 16, 2023, as it appeals delisting after six months of non-compliance with listing rules.

Read more: Hyzon hearings to take place in March; company appeals Nasdaq delisting and petitions Delaware Court

On February 3, 2023, Hyzon received a Staff Determination from the Listing Qualification Staff of Nasdaq, notifying the company that unless it requested an appeal, the trading of its Class A common stock and warrants would be suspended from Nasdaq’s Capital Market on February 14, 2023, as well as seeing it delisted.

According to Hyzon, The Staff Determination was issued because it informed Nasdaq that it will not file its missing quarterly reports for the periods ending June 30, 2022, and September 20, 2022, on or before February 13, 2023.

Hyzon then, on February 10, 2023, filed a request for hearing with the Nasdaq Hearing Panel in response to the Staff Determination and requested an extension pending the hearing. The same day, the Hearing Panel granted Hyzon a 15 calendar stay of delisting, confirming it would notify the company within the 15 days whether its request for a stay pending hearing would be granted.

On February 22, Hyzon revealed it had been granted its request to extend the stay of delisting pending the hearing before the hearing panel and a final determination regarding Hyzon’s listing status.