CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | ||||||||||||
| Common Stock, $0.0001 par value per share | 207,745,626 | (2) | $ | 9.06 | (3) | $ | 1,882,175,372 | (3) | $ | 205,345.33 | ||||||
| Total | 207,745,626 | $ | 1,882,175,372 | $ | 205,345.33 | (4) | ||||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement (the “Registration Statement”) shall be deemed to cover any additional shares to be offered or issued from stock splits, stock dividends or similar transactions with respect to the shares being registered. |
| (2) | The number of shares of Common Stock being registered represents (i) Common Stock issued to existing investors in Custom Truck One Source, L.P. in connection with the rollover of such entity, (ii) Common Stock held by certain qualified institutional buyers and accredited investors following the acquisition of NESCO Holdings, LP, a Delaware limited partnership, and NESCO Holdings I, Inc. by Capitol Investment Corp. IV and (iii) Common Stock issued by certain qualified institutional buyers and accredited investors in connection with the closing of the Acquisition (as defined below). |
| (3) | |||||||||||
| (4) | A filing fee of $85,330 was paid in connection with the registrant’s (then known as Nesco Holdings, Inc.) November 13, 2019 | ||||||||||
| filing of a registration statement on Form S-3 (Registration Statement No. | |||||||||||
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 or until this Registration Statement shall become effective on such date as the SEC, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 to Registration Statement on Form S-3 (Registration Statement No. 333-259725) of the Registrant filed with the Securities and Exchange Commission on September 22, 2021 hereby amends the Registration Statement to increase the amount of securities to be registered and to provide for the resale of up to 207,745,626 shares of our common stock for the account of the selling security holders included herein and related disclosure of such holders.
| CALCULATION OF REGISTRATION FEE | |||||
Title of Each Class of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | |
| Primary Offering | |||||
| Common Stock, $0.0001 par value per share | |||||
| Preferred Stock, $0.0001 par value per share | |||||
| Total | (2) | (2) | $200,000,000 (2) | $25,960 (2)(3) | |
| Common Stock, $0.0001 par value per share | 20,949,980 (4) | $11.50 (5) | $240,924,770 (5) | $31,273 | |
| Secondary Offering | |||||
| Warrants to purchase Common Stock, $0.0001 par value per share | 7,533,333 (6) | — | — | (6) | |
| Common Stock, $0.0001 par value per share | 45,835,153 (7) | $4.72 (8) | $216,456,511 (8) | $28,097 | |
| Total (Primary and Secondary) | — | — | $657,381,281 | $85,330 | |
| (1) | In accordance with Rule 416 under the Securities Act, as amended, this registration statement shall be deemed to cover any additional shares to be offered or issued from stock splits, stock dividends or similar transactions with respect to the shares being registered. | ||||
| (2) | There is being registered hereunder an indeterminate number of shares of common stock and shares of preferred stock, as may be sold from time to time in such amount as shall result in an aggregate offering price not to exceed $200,000,000. | ||||
| (3) | Calculated in accordance with Rule 457(o) under the Securities Act. | ||||
| (4) | Represents the issuance of up to 20,949,980 shares of common stock of Nesco Holdings, Inc., par value $0.0001 per share (“common stock”), that may be issued upon exercise of 20,949,980 outstanding warrants, each entitling the holder thereof to purchase one share common stock at an exercise price of $11.50 per share, subject to certain adjustments (the “warrants”). The warrants include 6,533,333 warrants issued in a private placement in connection with our initial public offering, 13,416,647 warrants sold as part of the units in our initial public offering and 1,000,000 warrants issued upon conversion of certain working capital loans in connection with the consummation of our initial business combination. | ||||
| (5) | Calculated pursuant to Rule 457(g) under the Securities Act. | ||||
| (6) | Represents the resale of 6,533,333 Warrants issued in a private placement in connection with our initial public offering and 1,000,000 warrants issued upon conversion of certain working capital loans (both as converted in connection with our initial business combination) (the “private warrants”). Pursuant to Rule 457(g), no separate registration fee is required for the private warrants. | ||||
| (7) | Represents the resale (i) 34,850,022 shares of common stock currently owned by selling securityholders named herein, (ii) 7,533,333 shares of common stock issuable upon exercise of the private warrants and (iii) 3,451,798 shares of common stock issuable upon achievement of certain earn out provisions in connection with our initial business combination. | ||||
| (8) | Estimated solely for purpose of calculating the registration fee pursuant to Rule 457(c) under the Securities Act, as amended, based on the average of the high and low prices of our common stock on the New York Stock Exchange on November 7, 2019. | ||||
| 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. | |||||
The information contained in this prospectus is not complete and may be changed. Neither we nor theThe selling stockholderssecurityholders may not sell these securities until the Registration Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not the solicitation of an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 13, 2019
Prospectus
Custom Truck One Source, Inc.
207,745,626 Shares of Common Stock
This prospectus relates to the issuance byresale of 207,745,626 shares of Common Stock of Custom Truck One Source Inc., a Delaware corporation formerly known as Nesco Holdings, Inc. (“Nesco,we,” “us,” “our” and the “Company,” “we” or “us”“Company”) of; (i) shares of common stock of the Company,, par value $0.0001 per share (“common stock”(the “Common Stock”) or preferred stockin connection with the (i) Common Stock issued to existing investors in Custom Truck One Source, L.P. in connection with the rollover of such entity, (ii) Common Stock held by certain qualified institutional buyers and accredited investors following the acquisition of NESCO Holdings, LP, a Delaware limited partnership, and NESCO Holdings I, Inc. by Capitol Investment Corp. IV and (iii) Common Stock issued by certain qualified institutional buyers and accredited investors in connection with the closing of the Company, par value $0.0001 per share (“preferred stock”Acquisition by certain the selling securityholders (each a “selling securityholder” and, collectively, the “selling securityholders”) that may be offerednamed in this prospectus from time to time in amounts, at prices and on terms to be determined by market conditions and other factors at the time of the offering, (ii) up to 20,949,980 shares of common stock issuable upon the exercise of warrants (a) sold as part of the units in our initial public offering (“public warrants”), (b) sold in a private placement that closed simultaneously with the closing of our initial public offering (“sponsor warrants”) and (c) issued in connection with the consummation of the Transactions (as defined herein) on July 31, 2019 (together with the sponsor warrants, the “private warrants”, and the private warrants together with the public warrants, the “warrants”). Each warrant entitles the holder to purchase upon exercise one share of common stock at an exercise price of $11.50 per share or, under certain circumstances described herein, on a cashless basis.
On April 1, 2021 Custom Truck One Source, Inc., a Delaware corporation formerly known as Nesco Holdings, Inc., completed the acquisition (the “Acquisition”) of common stock issuable upon exerciseCustom Truck One Source, L.P. (“CTOS”) and its general partner pursuant to a Purchase and Sale Agreement entered into on December 3, 2020 (the “Purchase Agreement”) by and among NESCO Holdings II, Inc., certain affiliates of the private warrantsBlackstone Group (“Blackstone”) and (c) 3,451,798 sharesother direct and indirect equity holders (collectively, “Sellers”) of common stock issuable upon achievementCTOS, Blackstone Capital Partners VI-NQ L.P. and, solely with respect to Section 9.04 of the Purchase Agreement, PE One Source Holdings, LLC, an affiliate of Platinum Equity. In connection with the Closing of the Acquisition, certain earn out provisionsof the selling stockholders received Common Stock of Custom Truck One Source Inc. in exchange for existing equity of Custom Truck One Source, L.P. In addition, on December 3, 2020, in connection with the Transactions ((i) and (ii), collectively, the “Securities”).
We will not receive any of the proceeds from the saleresale of the Securities offeredCommon Stock by the selling securityholders. We will bear all costs, expenses and fees in connection with the registration of the Common Stock. We are registering the offeroffering and sale of SecuritiesCommon Stock by the selling securityholders described herein to satisfy registration rights we have granted the selling securityholders in connection with the Transactions. The selling securityholdersAmended and Restated Stockholders’ Agreement dated April 1, 2021 (the “Stockholders Agreement”).
This prospectus describes the general manner in which these securities may be offered and sold. If necessary, the specific manner in which these securities may be offered and sold will paybe described in one or assume brokerage commissionsmore supplements to this prospectus. Any prospectus supplement may add, update or change information contained in this prospectus. You should carefully read this prospectus and similar charges, if any incurredapplicable prospectus supplement, together with the documents we incorporate by reference, before you invest in the saleany of the Securities.our securities.
The selling securityholders may offer and sell or distribute all or a portion of their Securities publiclythe Common Stock described in this prospectus and any prospectus supplement to or through private transactions at prevailing market pricesone or at negotiated prices. We will not receivemore underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the proceedsCommon Stock, 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 saleinformation set forth, in the applicable prospectus supplement, if any. The selling securityholders and any broker-dealer executing sell orders on behalf of the selling securityholders, may be deemed to be “underwriters” within the meaning of the Securities ownedAct. Commissions received by any broker-dealer may be deemed to be underwriting commissions under the selling securityholders, except that upon any exerciseSecurities Act. See the sections of the private warrants, we will receive the exercise price of the private warrants, assuming the private warrants are exercised for cash. The selling securityholders will bear all commissionsthis prospectus entitled “About this Prospectus” and discounts and transfer taxes, if any, attributable to their sale of the Securities. See “Plan of Distribution.”
Our common stock and warrants areCommon Stock is listed on The New York Stock Exchange (“NYSE”) under the symbols “NSCO” and “NSCO.WS,” respectively.symbol “CTOS”. On November 7, 2019,September 21, 2021, the closing price of our common stockCommon Stock was $4.81$9.45 per share.
Investing in our shares involves a number of risks. See “Risk Factors” on page 3 to read about factors you should consider before investing in our common stock.Common Stock.
Neither the Securities and Exchange Commission (“SEC”)SEC nor any state securities commission nor any other regulatory body has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2019.2021.
TABLE OF CONTENTS
No one has been authorized any dealer, salesperson or other person to give anyprovide you with information or to make any representation other than thosethat is different from that contained or incorporated by reference in this prospectus andor any accompanying supplement to this prospectus.prospectus supplement. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or any accompanying prospectus supplement. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securitiesCommon Stock to which they relate, nor do this prospectus and any accompanying prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such an offer or solicitation in such jurisdiction.
i
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC using a “shelf” registration process. Under this shelf registration process, wethe selling securityholders may from time to time offer andto sell any combinationshares of the securitiesCommon Stock described in this prospectus in one or more offerings.
This prospectus provides you with a general description of us and certain of our securities. We may also provide a prospectus supplement to add information to, or update or change information contained in, this prospectus. You should read both this prospectus and any applicable prospectus supplement together with the additional information to which we refer you in the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
You should assume that the information appearing in this prospectus and any applicable accompanying prospectus supplement is accurate as of the date on its respective cover, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates.
If the description of the offering varies between any prospectus supplement and this prospectus, you should rely on the information in any applicable prospectus supplement. Any statement made in this prospectus or in a document incorporated by reference in this prospectus will be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or in any other subsequently filed document that is also incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not, except as so modified or superseded, constitute a part of this prospectus. Before making an investment in any of our securities, you should carefully read this prospectus, any applicable prospectus supplement and any applicable free writing prospectus, together with the information incorporated and deemed to be incorporated by reference herein as described under “Incorporation of Certain Information by Reference” and the additional information described under the heading “Where You Can Find More Information.”
ii
Any statements made in this prospectus to the “Company,” “Nesco,” “we,” “us,” and “our” refer to Nesco Holdings, Inc., a Delaware corporation, and its subsidiaries, on a consolidated basis. References to “selling securityholders” refer to the securityholders listed herein under the heading “Selling Securityholders.”
| ● | difficulty in integrating the Nesco Holdings, Inc. and Custom Truck One Source, L.P. businesses and fully realizing the anticipated benefits of the Acquisition, as well as significant transaction and transition costs that we will continue to incur following the Acquisition; |
| ● | material disruptions to our operation and manufacturing locations as a result of public health concerns, including COVID-19, equipment failures, natural disasters, work stoppages, power outages or other reasons; |
| ● | the cyclicality of demand for our products and services and our vulnerability to industry, regional and national downturns, which impact, among others, our ability to manage our rental equipment; |
| ● | fluctuation of our revenue and operating results; |
| ● | our inability to obtain raw materials, component parts and/or finished goods in a timely and cost-effective manner; |
| ● | competition, which may have a material adverse effect on our business by reducing our ability to increase or maintain revenues or profitability; |
| ● | any further increase in the cost of new equipment that we purchase for use in our rental fleet or for our sales inventory; |
| ● | aging or obsolescence of our existing equipment, and the fluctuations of market value thereof; |
| ● | our inability to recruit and retain the experienced personnel we need to compete in our industries; |
| ● | disruptions in our information technology systems or a compromise of our system security, limiting our ability to effectively monitor and control our operations, adjust to changing market conditions, and implement strategic initiatives; |
iii
| ● | unfavorable conditions in the capital and credit markets and our inability to obtain additional capital as required; |
| ● | our inability to renew our leases upon their expiration; |
| ● | our failure to keep pace with technological developments; |
| ● | our dependence on a limited number of manufacturers and suppliers and on third-party contractors to provide us with various services to assist us with conducting our business; |
| ● | potential impairment charges and our inability to collect on contracts with customers; |
| ● | failure of federal and state legislative and regulatory developments that encourage electric power transmission infrastructure spending to translate into demand for our equipment; |
| ● | changes to international trade agreements, tariffs, import and excise duties, taxes or other governmental rules and regulations; |
| ● | our exposure to various risks related to legal proceedings or claims, and our failure to comply with relevant laws and regulations, including those related to occupational health and safety, the environment and government contracts; |
| ● | the interest of our majority stockholder, which may not be consistent with the other stockholders; |
| ● | our significant indebtedness, which may adversely affect our financial position, limit our available cash and our access to additional capital, prevent us from growing our business and increase our risk of default; and |
| ● | significant operating and financial restrictions imposed by the indenture governing our outstanding senior secured notes and the asset-based lending credit agreement. |
These cautionary statements should not be construed by you to be exhaustive and are made only as of the date of this report.prospectus. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, unless required by law. See “Risk Factors” in this prospectus for additional risks.
iv
Organization
Custom Truck One Source, Inc. (f/k/a Nesco Holdings, Inc.), a Delaware corporation, serves as the parent for ourits primary operating company,companies, NESCO, LLC, an Indiana limited liability company, (“NESCO LLC”). NESCO LLC, and its wholly owned subsidiaries, is engaged in the business of providing a range of services and products to customers through rentals of specialty equipment, sales of parts related to the specialty equipment, and repair and maintenance services related to that equipment.
We are a specialty equipment rental provider to the electric utility transmission and distribution, telecommunications, rail and railother infrastructure related industries in North America. Our core business relates to our new equipment inventory and rental fleet of specialty rental equipment that is utilized by service providers in infrastructure development and improvement work. Specifically, weWe offer our specialized equipment to a diverse customer base, including utilities and contractors, for the maintenance, repair, upgrade, and installation of critical infrastructure assets, including distribution and transmission electric lines, telecommunications networks and rail systems, as well as for lighting and signage. We rent, produce, sell and sellservice a broad range of new and used equipment, including bucket trucks, digger derricks, line equipment,dump trucks, cranes, pressure diggers,service trucks, and underground equipment, which formsheavy-haul trailers. Following the Acquisition, we changed our reportable segments to be consistent with how we currently manage the business, representing three reporting segments: Equipment Rental Solutions (“ERS”), Truck and Equipment Sales segment. To complement our fleet, we also provide a one-stop shop through our(“TES”) and Aftermarket Parts Tools and Accessories segment for existingServices (“APS”).
Acquisition of Custom Truck One Source, L.P.
On December 3, 2020, the Company agreed to acquire 100% of the limited partnership interests of CTOS and prospective NESCO LLC customers100% of the limited liability company interests of Custom Truck One Source, L.P.’s general partner pursuant to purchase or rent parts, tools, and accessories needed to outfit their specialty truck fleet. These activities form our Parts, Tools, and Accessories segment. We are positioned to serve all 50 U.S. states and 13 Canadian provinces and territories via our network of over 50 locations in the United States and Canada.
On April 7, 2019, Holdings I entered into a definitive agreement with Capitol Investment Corp. IV, a public investment vehicle, whereby the parties agreed to merge, resulting in the parent of Holdings I becoming a publicly listed company.
Corporate Information
We are a Delaware corporation and our corporate headquarters are located at 6714 Pointe Inverness Way, Suite 220, Fort Wayne, Indiana 46804.7701 Independence Avenue, Kansas City, Missouri 64125. Our telephone number is (800) 252-0043.(816) 241-4888. Our Internet website address is
1
| Resale of Securities by selling securityholders | ||
| Common | This prospectus covers 207,745,626 shares of | |
| Use of proceeds | We will not receive | |
| Registration Rights | We agreed to file a registration statement, of which this prospectus is a part, to register for | |
| General | ||
| NYSE ticker symbols | Common | |
| Risk factors | Investing in our | |
2
An investment in our securities involves a high degree of risk. You should carefully consider the matters discussed under “Risk Factors” under “Item 2.01 Acquisition or Disposition of Assets—Form 10 Information—Risk Factors” toin our CurrentAnnual Report on Form 8-K10-K, filed with the SEC on August 1, 2019.March 9, 2021, as updated by our subsequent Quarterly Reports on Form 10-Q, and in the Acquisition Proxy Statement. You should also carefully consider the matters discussed under “Risk Factors” or any similar caption in other documents or reports that we file with the SEC that are incorporated or deemed to be incorporated by reference in this prospectus as well as any risks described in any applicable prospectus supplement or free writing prospectus that we provide you in connection with an offering of securities pursuant to this prospectus. See “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.” Additionally, the risks and uncertainties discussed in this prospectus or in any document incorporated by reference into this prospectus are not the only risks and uncertainties that we face, and our business, financial condition, prospects, results of operations, cash flow and the market price of our securities could be materially adversely affected by other matters that are not known to us or that we currently do not consider to be material.
3
We will not receive any of the net proceeds from the sale of securities we are offering for general corporate purposes. This may include, among other things, additions to working capital, repayment or refinancing of existing indebtedness or other corporate obligations, financing of capital expenditures and acquisitions and investment in existing and future projects. Any specific allocation of the net proceeds of an offering of securities to a specific purpose will be determined at the time of the offering and will be described in an accompanying prospectus supplement or free writingCommon Stock covered by this prospectus.
The selling securityholders will not receivepay any proceeds from the sale of the Securitiesunderwriting discounts and commissions and expenses incurred by the selling securityholders named herein.
This prospectus relates to the possible resale by the selling securityholders of up to 7,533,333 private warrants and 45,835,153207,745,626 shares of our common stock consisting (i) 34,850,022 shares of common stock currently owned by selling securityholders named herein, (ii) 7,533,333 shares of common stock issuable upon exercise of the private warrants and (iii) 3,451,798 shares of common stock issuable upon achievement of certain earn out provisionsCommon Stock in connection with the Transactions.
When we refer to the “selling securityholders” in this prospectus, we mean the persons listed in the table below.
The following table setsset forth, as of the date of this prospectus, the namenames of the selling securityholders, the beneficial ownership of SecuritiesCommon Stock held by each selling securityholder, the aggregate amount of SecuritiesCommon Stock that the selling securityholders may offer pursuant to this prospectus and the number and percentage of Securitiesshares of Common Stock that each selling securityholder will beneficially own after this offering assuming they sell all such securities that they may offer pursuant to this prospectus. The percentage of Securitiesshares of Common Stock owned by the selling securityholders following the offering of any shares of common stock or warrantsCommon Stock pursuant to this prospectus, is based on 49,033,903245,919,185 shares of common stockCommon Stock and 20,949,980 warrants outstanding as of November 7, 2019.August 31, 2021. Derivative securities exercisable or convertible into shares of our common stockCommon Stock within sixty (60) days of November 7, 2019the date hereof are deemed to be beneficially owned and outstanding for computing the share ownership and percentage of the person holding securities, but are not deemed outstanding for computing the percentage of any other person. Unless otherwise indicated, the we believe that all persons named in the tabletables have sole voting and investment power with respect to all shares of common stockCommon Stock beneficially owned by them.
Information with respect to beneficial ownership is based on information obtained from such selling securityholder and publicly available information. Information with respect to shares beneficially owned after the offering assumes the sale of all the shares offered and no other purchases or sales of common stock.Common Stock. Information about other selling securityholders, if any, including their identities, the common stockCommon Stock to be registered on their behalf and the amounts to be sold by them, will be set forth in a prospectus supplement.
| Common Stock | ||||||||||||||||
| Name and Address of Beneficial Owner | Beneficially owned prior to offering | To be sold pursuant to this prospectus(1) | Beneficially owned after offering | Percentage beneficially owned after offering | ||||||||||||
| Blackstone Capital Partners VI-NQ L.P.(2) | 3,492,069 | 3,492,069 | 0 | — | % | |||||||||||
| Blackstone Family Investment Partnership VI-NQ ESC L.P.(2) | 17,360 | 17,360 | 0 | — | % | |||||||||||
| Blackstone Energy Partners NQ L.P.(2) | 2,932,195 | 2,932,195 | 0 | — | % | |||||||||||
| Blackstone Energy Family Investment Partnership NQ ESC L.P.(2) | 179,835 | 179,835 | 0 | — | % | |||||||||||
| BCP CTOS Holdings L.P.(2) | 3,576,281 | 3,576,281 | 0 | — | % | |||||||||||
| BEP CTOS Holdings L.P.(2) | 3,622,088 | 3,622,088 | 0 | — | % | |||||||||||
| Blackstone Energy Family Investment Partnership SMD L.P.(2) | 351,593 | 351,593 | 0 | — | % | |||||||||||
| Energy Capital Partners III, LP | 64,450 | 64,450 | 0 | — | % | |||||||||||
| Energy Capital Partners III-A, LP | 2,169,601 | 2,169,601 | 0 | — | % | |||||||||||
| Energy Capital Partners III-B, LP | 262,015 | 262,015 | 0 | — | % | |||||||||||
| Energy Capital Partners III-C. LP | 896,947 | 896,947 | 0 | — | % | |||||||||||
| Energy Capital Partners III-D, LP | 1,106,987 | 1,106,987 | 0 | — | % | |||||||||||
| Platinum Equity, LLC(3) | 148,600,000 | 148,600,000 | 0 | — | % | |||||||||||
| NESCO Holdings, LP(4) | 27,083,594 | 27,083,594 | 0 | — | % | |||||||||||
| Energy Capital Partners Management, L.P.(5) | 120,779 | 120,779 | 0 | — | % | |||||||||||
| Equity Trust Company Custodian FBO Jonathan N Brooks IV IRA | 6,388 | 6,388 | 0 | — | % | |||||||||||
| Dennis Depazza(6) | 21,293 | 21,293 | 0 | — | % | |||||||||||
| Fredrick M. Ross, Jr. Holding Company, LLC | 2,000,000 | 2,000,000 | 0 | — | % | |||||||||||
| Capitol Acquisition Management IV LLC | 6,741,286 | 6,741,286 | 0 | — | % | |||||||||||
| Kevin Kapelke(7) | 51,104 | 51,104 | 0 | — | % | |||||||||||
| Lee Jacobson(8) | 153,312 | 153,312 | 0 | — | % | |||||||||||
| The Heinemann Family Trust(9) | 57,534 | 57,534 | 0 | — | % | |||||||||||
| Brooke Coburn | 43,317 | 43,317 | 0 | — | % | |||||||||||
| Beth Steffen(10) | 4,259 | 4,259 | 0 | — | % | |||||||||||
| Adam Haubenreich(11) | 17,318 | 17,318 | 0 | — | % | |||||||||||
| Tom Vale | 13,684 | 13,684 | 0 | — | % | |||||||||||
| Halverson Children's Trust FBO Tyler Halverson | 23,635 | 23,635 | 0 | — | % | |||||||||||
| Brad Halverson(12) | 12,741 | 12,741 | 0 | — | % | |||||||||||
| Robert Dudzinski(13) | 15,699 | 15,699 | 0 | — | % | |||||||||||
| David Doolin | 6,802 | 6,802 | 0 | — | % | |||||||||||
| Mark Sharman(14) | 3,586 | 3,586 | 0 | — | % | |||||||||||
| Markstone LLC(15) | 144,069 | 144,069 | 0 | — | % | |||||||||||
| Dave Tucker(16) | 69,185 | 69,185 | 0 | — | % | |||||||||||
| Private Warrants | Common Stock | |||||||||||||||
| Name and Address of Beneficial Owner | Beneficially owned prior to offering | To be sold pursuant to this prospectus | Beneficially owned after offering | Percentage beneficially owned after offering | Beneficially owned prior to offering(1) | To be sold pursuant to this prospectus(1) | Beneficially owned after offering | Percentage beneficially owned after offering | ||||||||
| ECP ControlCo, LLC (1)(2) | 2,392,808 | 2,392,808 | — | — | % | 25,738,988 | 25,738,988 | — | — | % | ||||||
| Capitol Acquisition Management IV, LLC (3) | 2,457,338 | 2,457,338 | — | — | % | 5,706,289 | 5,706,289 | — | — | % | ||||||
| Capitol Acquisition Founder IV, LLC (4) | 1,228,670 | 1,228,670 | — | — | % | 2,853,144 | 2,853,144 | — | — | % | ||||||
| Calculated Risk Partners, LP (5) | 1,166,667 | 1,166,667 | — | — | % | — | — | — | — | % | ||||||
| Lawrence Calcano | 82,313 | 82,313 | — | — | % | 43,317 | 43,317 | — | — | % | ||||||
| Brooke B. Coburn | 82,313 | 82,313 | — | — | % | 43,317 | 43,317 | — | — | % | ||||||
| Richard C. Donaldson | 82,313 | 82,313 | — | — | % | 43,317 | 43,317 | — | — | % | ||||||
| Lee Jacobson (1)(6) | 17,226 | 17,226 | — | — | % | 153,312 | 153,312 | — | — | % | ||||||
| Jonathan Brooks (1) | 718 | 718 | — | — | % | 6,388 | 6,388 | — | — | % | ||||||
| Jameson Ringger (1)(7) | 14,355 | 14,355 | — | — | % | 127,760 | 127,760 | — | — | % | ||||||
| Kevin Kapelke (1)(8) | 5,742 | 5,742 | — | — | % | 51,104 | 51,104 | — | — | % | ||||||
| Dennis DePazza (1)(9) | 2,392 | 2,392 | — | — | % | 21,293 | 21,293 | — | — | % | ||||||
| Beth Steffen (1)(10) | 478 | 478 | — | — | % | 4,259 | 4,259 | — | — | % | ||||||
| Bruce Heinemann (11) | — | — | — | — | % | 57,534 | 57,534 | — | — | % | ||||||
| Ruth D. Ross Revocable Trust dated June 26, 2015(17) | 100,017 | 100,017 | 0 | — | % | |||||||||||
| Andrea Marie Spencer Holding Company, LLC | 290,432 | 290,432 | 0 | — | % | |||||||||||
| Christopher Martin Ross Holding Company, LLC(18) | 358,504 | 358,504 | 0 | — | % | |||||||||||
| John Ross(19) | 419 | 419 | 0 | — | % | |||||||||||
| The Sarah McMahon Family 2012 Irrevocable Trust | 306,187 | 306,187 | 0 | — | % | |||||||||||
| The George McMahon Family 2012 Irrevocable Trust | 306,187 | 306,187 | 0 | — | % | |||||||||||
| Christopher D. Ross Holding Company, LLC(20) | 308,240 | 308,240 | 0 | — | % | |||||||||||
| Angela Sweet | 1,909 | 1,909 | 0 | — | % | |||||||||||
| Tom Norcross(21) | 8,232 | 8,232 | 0 | — | % | |||||||||||
| FLR Holding Company, LLC (Francis and Lori Ross)(22) | 290,529 | 290,529 | 0 | — | % | |||||||||||
| Marie C. Ross Revocable Trust dated March 31, 2015 as amended(23) | 262,924 | 262,924 | 0 | — | % | |||||||||||
| Joseph P. Ross Holding Company, LLC(24) | 282,449 | 282,449 | 0 | — | % | |||||||||||
| Joseph P. Ross Revocable Trust dated June 24, 2015(25) | 1,326 | 1,326 | 0 | — | % | |||||||||||
| James M. Ross Holding Company, LLC(25) | 303,786 | 303,786 | 0 | — | % | |||||||||||
| Ben Link(26) | 18,524 | 18,524 | 0 | — | % | |||||||||||
| Bill Sumner(27) | 629 | 629 | 0 | — | % | |||||||||||
| Bob Dray(28) | 1,103 | 1,103 | 0 | — | % | |||||||||||
| Brad Meader(29) | 23,956 | 23,956 | 0 | — | % | |||||||||||
| Brian McCormick(30) | 3,036 | 3,036 | 0 | — | % | |||||||||||
| Bryan Boehm(31) | 8,908 | 8,908 | 0 | — | % | |||||||||||
| Carla Hart(32) | 1,103 | 1,103 | 0 | — | % | |||||||||||
| Chris Ragot(33) | 51,317 | 51,317 | 0 | — | % | |||||||||||
| Donna King(34) | 1,103 | 1,103 | 0 | — | % | |||||||||||
| Duane Edington(35) | 5,061 | 5,061 | 0 | — | % | |||||||||||
| Eric Sweet(36) | 10,161 | 10,161 | 0 | — | % | |||||||||||
| Geoff Rupert(37) | 1,103 | 1,103 | 0 | — | % | |||||||||||
| James Carlsen(38) | 11,974 | 11,974 | 0 | — | % | |||||||||||
| James Elliott(39) | 2,699 | 2,699 | 0 | — | % | |||||||||||
| Jay Benjamin(40) | 751 | 751 | 0 | — | % | |||||||||||
| Jeff Overly(41) | 15,260 | 15,260 | 0 | — | % | |||||||||||
| Jefferson Henes(42) | 5,344 | 5,344 | 0 | — | % | |||||||||||
| Jimmy Hottel(43) | 629 | 629 | 0 | — | % | |||||||||||
| John Wilson(44) | 3,818 | 3,818 | 0 | — | % | |||||||||||
| Matt Beller(45) | 12,070 | 12,070 | 0 | — | % | |||||||||||
| Neal Bever(46) | 629 | 629 | 0 | — | % | |||||||||||
| Randy Stilwell(47) | 419 | 419 | 0 | — | % | |||||||||||
| Ron Nicholson(48) | 1,103 | 1,103 | 0 | — | % | |||||||||||
| Ryan McMonagle(49) | 67,926 | 67,926 | 0 | — | % | |||||||||||
| Anthony Stanonis(50) | 839 | 839 | 0 | — | % | |||||||||||
| Maddi Blongewicz(51) | 751 | 751 | 0 | — | % | |||||||||||
| Molly Loehr (Regan)(52) | 419 | 419 | 0 | — | % | |||||||||||
| Vincent Ross Revocable Trust dated June 26, 2015(53) | 194,151 | 194,151 | 0 | — | % | |||||||||||
| Thomas Rich(54) | 20,857 | 20,857 | 0 | — | % | |||||||||||
| Stan Mikalonis(55) | 4,049 | 4,049 | 0 | — | % | |||||||||||
| Andy Zaborny(56) | 8,889 | 8,889 | 0 | — | % | |||||||||||
| Frank Ferguson(57) | 629 | 629 | 0 | — | % | |||||||||||
| T3 Investments, LLC(58) | 365,964 | 365,964 | 0 | — | % | |||||||||||
| John J and Madelyn I Ross Trust(59) | 90,545 | 90,545 | 0 | — | % | |||||||||||
| Jameson Ringger | 127,760 | 127,760 | 0 | — | % |
| * | Represents less than 1% of outstanding shares of Common Stock. |
| (1) | The amounts set forth in this column are the number of shares of Common Stock that may be offered by such selling securityholders using this prospectus. These amounts do not represent any other shares of our Common Stock that the selling securityholders may own beneficially or otherwise. |
| (3) | PE One Source Holdings, LLC is the record holder of 148,600,000 shares of Common Stock. Platinum Equity, LLC is the sole member of each Platinum Equity Investment Holdings, LLC (“Platinum Holdings”) and Platinum Equity Investment Holdings V Manager, LLC (“PEIH V Manager”). Platinum Holdings is the sole member of Platinum Equity Investment Holdings IC (Cayman), LLC, which is the general partner of Platinum Equity InvestCo, L.P. (“PEIC LP”), which holds all of the outstanding equity in Platinum Equity Investment Holdings V, LLC (“PEIH V”), which holds all of the outstanding equity in Platinum Equity Partners V, LLC, which is the general partner of Platinum Equity Partners V, L.P., which is the general partner of Platinum Equity Capital Partners V, L.P., which holds a majority of the outstanding equity in PE One Source Holdings, LLC. PEIH V Manager is the sole manager of PEIH V, and Platinum InvestCo (Cayman), LLC holds a controlling interest in PEIC LP. Platinum Equity and Tom Gores, together, hold a controlling interest in PIC LLC and may be deemed to beneficially owned the Shares beneficially owned by PIC LLC. Tom Gores is the Chairman and Chief Executive Officer of Platinum Equity. Accordingly, each of the foregoing entities and Mr. Gores may be deemed to beneficially own the shares of Common Stock held by | |
| (4) | Includes 2,392,808 shares of Common Stock issuable upon exercise of warrants and 3,451,798 Earn Out Shares (as defined in the | |
| (5) | Includes 13,631 shares of | |
| (6) | Dennis Depazza was employed by the Company until May 21, 2021. | |
| (7) | Kevin Kapelke was the Chief Operating Officer of Custom Truck until July 2, 2021. | |
| (8) | Lee Jacobson was the Chief Executive Officer of Custom Truck until April 1, 2021. | |
| (9) | Bruce Heinemann was the Chief Financial Officer of Custom Truck from October 2016 through August 2020. | |
| (10) | Beth Steffen is currently the VP of Strategic Accounts at Custom Truck. | |
| (11) | Adam Haubenreich is currently the VP and General Counsel at Custom Truck. | |
| (12) | Brad Halverson is a former member of the board of Custom Truck. | |
| (13) | Robert Dudzinski is a former VP of Custom Truck. | |
| (14) | Mark Sharman is an executive VP of Custom Truck. | |
| (15) | Mark Sharman is a beneficial owner of Markstone LLC and | |
| (16) | Dave Tucker is a former member of the | |
| (17) | Ruth Ross is the | |
| (18) | Christopher Martin Ross is | |
| (19) | John Ross is an account manager of Custom Truck. | |
| (20) | Christopher D. Ross is an operations manager at Custom Truck. | |
| (21) | Tom Norcross was an employee of Custom Truck until April 5, 2021. | |
| (22) | Francis Ross is an account manager of Custom Truck. | |
| (23) | Marie C. Ross is an employee of Custom Truck. | |
| (24) | Joseph Ross is the | |
| (25) | James Ross is a VP and the | |
| (26) | Ben Link is | |
| (27) | Bill Sumner is a Manager of |
| (28) | Bob Dray is a VP of Custom Truck. | |
| Brad Meader is |
| (30) | Brian McCormick is an account manager of Custom Truck. | |
| Bryan Boehm is |
| (32) | Carla Hart is a VP of Custom Truck. | |
| Chris Ragot is a |
| (34) | Donna King is the Inside Sales Specialist of Custom Truck. | |
| Duane Edington is a |
| (36) | Eric Sweet is a regional VP of Custom Truck. | |
| Geoff Rupert is a Director at Custom Truck. |
| (38) | James Carlsen is the Chief Information Officer of Custom Truck. | |
| James Elliott is a former VP of Custom Truck. |
| (40) | Jay Benjamin is a VP of Custom Truck. | |
| Jeff Overly is a former Director of Custom Truck. |
| (42) | Jefferson Henes is a Director of Custom Truck. | |
| Jimmy Hottel is an Inside Sales |
| (44) | John Wilson is a VP of Custom Truck. | |
| Matt Beller is a senior VP of Custom Truck. | ||
| (46) | Neal Bever is an Inside Sales Manager of Custom Truck. | |
| (47) | Randy Stilwell is a General Manager of Custom Truck. | |
| (48) | Ron Nicholson is a former General Manager of Custom Truck. | |
| (49) | Ryan McMonagle is the President and Chief | |
| (50) | Anthony Stanonis is a General Manager of Custom Truck. | |
| (51) | Maddi Blongewicz is an Operations Strategy Manager of Custom Truck. | |
| (52) | Molly Loehr (Regan) is the Director of Marketing of Custom Truck. | |
| (53) | Vincent Ross is a VP of Custom Truck. | |
| (54) | Thomas Rich is an executive VP of Custom Truck. | |
| (55) | Stan Mikalonis is an executive VP of Custom Truck. | |
| (56) | Andy Zaborny is an executive VP of Custom Truck. | |
| (57) | Frank Ferguson is a Director of Custom Truck. | |
| (58) | T3 Investments, LLC is the trust of a former employee of Custom Truck. | |
| (59) | John Ross is an Account Manager of Custom Truck. |
To the selling securityholders
8
The following summary of our capital stock and our charter and our bylaws does not purport to be complete and is qualified in its entirety by reference to the provisions of applicable law and to our charter and bylaws, which are filed as exhibits to the registration statementRegistration Statement of which this prospectus is a part.
General
We are a Delaware corporation. Our charter provides for 250,000,000500,000,000 authorized shares of common stockCommon Stock and 5,000,00010,000,000 authorized shares of preferred stock. As of November 7, 2019,August 31, 2021, there were 49,033,903245,919,185 shares of common stock,Common Stock, no shares of preferred stock and 20,949,980 warrants to purchase shares of our common stock outstanding.
Common Stock
The holders of common stockCommon Stock are entitled to one vote for each share held of record on all matters to be voted on by stockholders.
Holders of common stockCommon Stock do not have any conversion, preemptive or other subscription rights and there will be no sinking fund or redemption provisions applicable to the common stock.
The rights, preferences and privileges of the holders of common stockCommon Stock are subject to those of the holders of any shares of preferred stock we may issue in the future.
Voting Rights
Each holder of our common stockCommon Stock is entitled to one vote per share on each matter submitted to a vote of stockholders, unless otherwise provided by our certificate of incorporation. Our bylaws provide that the presence, in person or by proxy, of holders of shares representing a majority of the issued and outstanding shares of capital stock entitled to vote at a stockholders’ meeting shall constitute a quorum. When a quorum is present, the affirmative vote of a majority of the votes cast is required to take action, unless otherwise specified by law, our bylaws, our certificate of incorporation or our Stockholders’ Agreement. There are no cumulative voting rights.
Dividend Rights
Each holder of shares of our capital stock is entitled to receive such dividends and other distributions in cash, stock or property as may be declared by our board of directors from time to time out of our assets or funds legally available for dividends or other distributions. These rights are subject to the preferential rights of the holders of our preferred stock, if any, and any contractual limitations on our ability to declare and pay dividends.
Liquidation Rights
If the Company is involved in a consolidation, merger, recapitalization, reorganization, voluntary or involuntary liquidation, dissolution or winding up of affairs, or similar event, each holder of common stockCommon Stock will participate pro rata in all assets remaining after payment of liabilities, subject to prior distribution rights of preferred stock, if any, then outstanding.
Transfer Agent and Registrar
The transfer agent and registrar for our common stockCommon Stock is Continental Stock Transfer & Trust Company, 1 State Street, 30th Floor, New York, New York 10004.
Listing
Our common stockCommon Stock is listed on the New York Stock Exchange under the symbol “NSCO”“CTOS”.
9
Certain Anti-Takeover Provisions of Delaware Law and Our Certificate of Incorporation
We have certain anti-takeover provisions in place as follows:
Staggered Board of Directors
Our certificate of incorporationcharter provides that ourthe board of directors be classified into three classes of directors of approximately equal size. As a result, in most circumstances, a person can gain control of our board only by successfully engaging in a proxy contest at two or more annual meetings. Furthermore, because the board will beis classified, directors may be removed only with cause by a majority of our outstanding shares.
Action by Written Consent; Special Meetingmeeting of Stockholders
Our charter provides that stockholder action may only be taken by written consent in lieu of a meeting while Platinum Equity Advisors, LLC (“Platinum”) and its affiliates collectively beneficially own, in the aggregate, at least 50% in voting power of the stock of the Company entitled to vote generally in the election of directors, any action required or permitted to be taken at any annual or special meeting of stockholders of the Company.
The DGCLGeneral Corporation Law of the State of Delaware (the “DGCL”) provides that special meetings of our stockholders may be called by the board of directors.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Our bylaws requireprovide that stockholders must comply with certain procedures in orderseeking to bring business before our annual meeting of stockholders, or to nominate candidates to our board offor election as directors or to propose matters to be acted upon at our annual meeting of stockholders.stockholders, must provide timely notice of their intent in writing. To be timely, a stockholder’s notice will need to be received by the company secretary at our principal executive offices not later than the close of business on the 90th day nor earlier than the open of business on the 120th day prior to the anniversary date of the immediately preceding general meeting of stockholders (except that, with respect to Platinum’s nomination of directors, the reference to 90 days shall be 45 days). Such notice also must fulfill certain information requirements with respect to the stockholder delivering such notice and the matter proposed (or director candidate nominated) of which Platinum is partially exempt. Pursuant to Rule 14a-8 of the Exchange Act, proposals seeking inclusion in our annual proxy statement must comply with the notice periods contained therein. Our bylaws also specify certain requirements as to the form and content of a stockholders’ meeting. These provisions may preclude our stockholders from bringing matters before the general meeting of stockholders or from making nominations for directors at our general meeting of stockholders.
Authorized but Unissued Shares
Our authorized but unissued common stockCommon Stock and preferred stock will be available for future issuances without stockholder approval and could be utilized for a variety of corporate purposes, including future offerings to raise additional capital, acquisitions and employee benefit plans. The existence of authorized but unissued and unreserved common stockCommon Stock and preferred stock could render more difficult or discourage an attempt to obtain control of the Company by means of a proxy contest, tender offer, merger or otherwise.
Exclusive Forum Selection
Our certificate of incorporation requires, to the fullest extent permitted by law, that, unless we consent in writing to the selection of an alternative forum, derivative actions brought in our name, actions against directors, officers and employees for breach of fiduciary duty and other similar actions may be brought only in the Court of Chancery in the State of Delaware (or, in the event that the Court of Chancery of the State of Delaware does not have jurisdiction (such as in the case of claims brought to enforce any liability or duty created by the Exchange Act, in which case federal courts have exclusive jurisdiction), the federal district court for the District of Delaware or other state courts of the State of Delaware) and, if brought outside of Delaware, the stockholder bringing the suit will be deemed to have consented to service of process on such stockholder’s counsel. This exclusive forum provision applies to state and federal law claims brought by stockholders (including claims pursuant to the Securities Act and the Exchange Act), although stockholders will not be deemed to have waived the Company’s compliance with the federal securities laws and the rules and regulations thereunder. The enforceability of similar choice of forum provisions in other companies’ organizational documents has been challenged in legal proceedings, and it is possible that, in connection with claims arising under federal securities laws, a court could find the choice of forum provisions contained in our Certificate of Incorporationcharter to be inapplicable or unenforceable. Although we believe this provision benefits our company by providing increased consistency in the application of Delaware law in the types of lawsuits to which it applies, the provision may have the effect of discouraging lawsuits against our directors and officers.
10
Business Combinations with Interested Stockholders
Our charter provides that we are not subject to Section 203 of the DGCL, provides that ifan anti-takeover law. In general, Section 203 prohibits a person acquires 15% or more of the voting stock of apublicly held Delaware corporation from engaging in a business combination, such person becomesas a merger, with an “interested stockholder” and may not engage in certain “business combinations” with the corporation for(which includes a period of three years from the time such person acquiredor group owning 15% or more of the corporation’s voting stock, unless: (1)stock) for a period of three years following the board of directors approves the acquisition of stock or the merger transaction before the time thatdate the person becomesbecame an interested stockholder, (2)unless (with certain exceptions) the business combination or the transaction in which the person became an interested stockholder owns at least 85%is approved in a prescribed manner. Accordingly, we are not subject to any anti-takeover effects of Section 203. Nevertheless, our charter will contain provisions that will have a similar effect to Section 203, except that they will provide that (i) Platinum; (ii) Energy Capital Partners, LLC, a Delaware limited liability company, Energy Capital Partners II, LLC, Energy Capital Partners III, LLC, Energy Capital Partners Mezzanine, LLC, Energy Capital Partners IV, LLC, Energy Capital Partners Credit Solutions II, LLC, ECP ControlCo, LLC, Energy Capital Partners Holdings, LP, ECP Feeder, LP, and ECP Management GP, LLC; (iii) Capitol Acquisition Management IV LLC and Capitol Acquisition Founder IV LLC; and (iv) Blackstone Management Partners L.L.C. and their respective direct and indirect transferees will not be deemed to be “interested stockholders,” regardless of the outstanding voting stockpercentage of the corporation at the time the merger transaction commences (excludingCompany’s voting stock owned by directors who are also officersthem, and certain employee stock plans), or (3) the merger transaction is approved by the board of directors and at a meeting of stockholders,accordingly will not by written consent, by the affirmative vote of 2/3 of the outstanding voting stock which is not owned by the interested stockholder. A Delaware corporation may elect in its certificate of incorporation or bylaws not to be governed by this particular Delaware law. As set forth in our certificate of incorporation, we have opted out of, and are therefore not subject to Section 203 of the DGCL.
Limitation on Liability and Indemnification of Directors and Officers
Our certificate of incorporationcharter provides that directors and officers will be indemnified by us to the fullest extent authorized by Delaware law as it now exists or may in the future be amended. In addition, our certificate of incorporationcharter provides that directors will not be personally liable for monetary damages to the Company for breaches of their fiduciary duty as directors, unless they violated their duty of loyalty to usthe Company or ourits stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived an improper personal benefit from their actions as directors.
Our bylaws also permit usthe Company to secure insurance on behalf of any officer, director or employee for any liability arising out of his or her actions, regardless of whether Delaware law would permit indemnification. Upon consummation of the Transactions, we willWe have purchased a policy of directors’ and officers’ liability insurance that insures ourits directors and officers against the cost of defense, settlement or payment of a judgment in some circumstances and insures usit against ourthe obligations to indemnify the directors and officers.
These provisions may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and officers, even though such an action, if successful, might otherwise benefit usthe Company and ourits stockholders. Furthermore, a stockholder’s investment may be adversely affected to the extent we paythe Company pays the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. We believe that these provisions, the insurance and the indemnity agreements are necessary to attract and retain talented and experienced directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
11
The selling securityholders and assigns) have the right to designate up to four persons to be appointed or nominated for election to our board of directors, subject to reduction based on the aggregate ownership of Legacy Nesco Owner and its successors and assigns. Legacy Nesco Owner may also request for at least one of its designated directors to be appointed as a member of each newly established committee of our board of directors. If Legacy Nesco Owner has the right to designate one or more nominees and either has not exercised such right or no such nominee has not been elected, then Legacy Nesco Owner may designate one board observer. While the Stockholders’ Agreement is in effect, any change in the size of the Nesco board of directors will require the prior approval of Legacy Nesco Owner.
| ● | sales on the NYSE or any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale; | |
| ● | an over-the-counter sale or distribution; | |
| ● | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; | |
| ● | to or through underwriters, brokers, dealers or agents; |
| ● | block trades (which may involve crosses) in which the broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| ● | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| ● | an exchange distribution and/or secondary distribution in accordance with the rules of the applicable exchange; |
| ● | privately negotiated transactions; |
| ● | “at the market” or through market makers or into an existing market for the securities; |
| ● | through one or more underwritten offerings on a firm commitment or best efforts basis; |
| ● | settlement of short sales entered into after the date of this prospectus (including short sales “against the box”); |
| ● | agreements with broker-dealers to sell a specified number of securities at a stipulated price per security; |
| ● | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise, or through the writing of other securities or contracts to be settled in such securities; |
| ● | through the distribution of securities by us or any selling securityholder to our or its general or limited partners, members, managers affiliates, employees, directors or securityholders; | |
| ● | a combination of any such methods of sale; or | |
| ● | any other method permitted pursuant to applicable law. |
We have not, and to our knowledge, the selling securityholders have not, entered into any agreements, understandings or arrangements with any underwriters or broker-dealers regarding the sale of the securities covered by this prospectus:
To the extent required, any selling securityholder to its partners, membersapplicable prospectus supplement will set forth whether or stockholders;
The aggregate proceedsselling securityholders may act independently of us in making decisions with respect to the price, timing, manner and size of each sale of securities. Offers to purchase securities may be solicited directly by the selling securityholders fromand the sale of our Securities willthereof may be made by the purchase price of our Securities less discountsselling securityholders directly to institutional investors or commissions, if any.others. In such a case, no underwriters or agents would be involved. The selling securityholders reservemay use electronic media, including the rightInternet, to acceptsell offered securities directly. The selling stockholders may offer the securities covered by this prospectus into an existing trading market on the terms described in the prospectus supplement relating thereto. Underwriters, dealers and together with theiragents who participate in any at-the-market offerings will be described in the prospectus supplement relating thereto. The terms of each such agreement will be set forth in more detail in the applicable prospectus supplement. The selling securityholders may sell the securities through agents from time to time,time. Generally, any agent will be acting on a best efforts basis for the period of its appointment. If the selling securityholders utilize a dealer in the sale of the securities in respect of which this prospectus is delivered, the selling securityholder may sell such securities to the dealer, as applicable,principal. The dealer may then resell such securities to reject, in whole or in part, any proposed purchase of our Securitiesthe public at varying prices to be made directlydetermined by the dealer at the time of resale.
The selling securityholders may from time to time pledge or through agents. Wegrant a security interest in some or all of their securities to their broker-dealers under the margin provisions of customer agreements or to other parties to secure other obligations. If a selling securityholder defaults on a margin loan or other secured obligation, the broker-dealer or secured party may, from time to time, offer and sell the securities pledged or secured thereby pursuant to this prospectus or, to the extent required under the applicable securities laws, under an amendment to this prospectus under Rule 424 or other applicable provision of the Securities Act. The selling securityholders and any other persons participating in the sale or distribution of the securities will not receivebe subject to applicable provisions of the Securities Act and the Exchange Act, and the rules and regulations thereunder, including, without limitation, Regulation M. These provisions may restrict certain activities of, and limit the timing of purchases and sales of any of the proceeds from any offeringsecurities by, the selling securityholders.
If the selling securityholders use one or more underwriters in the futuresale, the underwriters will acquire the securities for their own account, and they may resell these securities from time to time in one or more transactions, including negotiated transactions, at a portionfixed public offering price or at varying prices determined at the time of the Securities in open market transactions in reliance upon Rule 144 under the Securities Act, provided that they meet the criteriasale. The securities may be offered and conformsold to the requirementspublic either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of that rule, or pursuant to other available exemptions from the registration requirements of the Securities Act.
We are “underwriters” withinrequired to pay all fees and expenses incident to the meaningregistration of Section 2(a)(11) of the Securities Act, thenour securities. We have agreed to indemnify the selling securityholders will be subject to the prospectus delivery requirements of the Securities Act. Underwritersagainst certain losses, claims, damages and their controlling persons, dealers and agents may be entitled, under agreements entered into with us and the selling securityholders to indemnification against and contribution toward specific civil liabilities, including liabilities under the Securities Act.
There can be no assurance that we or any selling securityholder will sell, nor are we or any selling securityholder required to sell, any or all of the securities registered pursuant to the registration statement of which this prospectus is a part.
To the extent required, this prospectus may be amended and/or supplemented from time to time to describe a specific plan of distribution. If required, we may add transferees, successors and donees by prospectus supplement in instances where the Securitiestransferee, successor or donee has acquired its shares from holders named in this prospectus after the effective date of this prospectus. Transferees, successors and donees of identified selling securityholders may not be able to be sold,use this prospectus for resales until they are named in the respective purchase prices and public offering prices, the names of any agents, dealers or underwriters, and any applicable discounts, commissions, concessions or other compensation with respect to a particular offer will be set forth in an accompanyingselling securityholders table by prospectus supplement or if appropriate, a post-effective amendment to the registration statement that includes this prospectus.
Latham & Trust Company, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the warrants, duly executed, accompanied by full payment of the exercise price, by certified or official bank check payable to us, for the number of warrants being exercised. Additionally, the warrants (excluding the private warrants that continue to be held by the holders holding such private warrants as of the date of any such redemption) will be required to be exercised on a cashless basis in the event of a redemption of the warrants pursuant to the warrant agreement governing our warrants in which our board of directors has elected to require all holders of the warrants who exercise their warrants to do so on a cashless basis. In such event, such holder will exercise his, her or its warrants on a cashless basis by paying the exercise price by surrendering his, her or its warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the number of shares of common stock underlying the warrants to be exercised, multiplied by the difference between the exercise price of the warrants and the “fair market value” (defined below) by (y) the fair market value. In this case, the “fair market value” will mean the average reported last sale price of the shares of our common stock for the ten trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of warrants.
The consolidated financial statements and the related financial statement schedule of Capitol Investment Corp. IV as of December 31, 2018 and 2017 and for the year ended December 31, 2018 and for the period from May 1, 2017 (inception) through December 31, 2017 have been incorporated by reference herein in reliance upon the report of Marcum LLP, independent registered public accounting firm,Nesco Holdings, Inc. incorporated in this prospectus by reference to ourfrom the Company's Annual Report on Form 10-K for the year ended December 31, 2018, filed with the SEC on March 4, 2019, and upon the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Custom Truck One Source, L.P. and subsidiaries as of December 31, 2020 and 2019, and for the three years ended December 31, 2020, 2019 and 2018, incorporated in this prospectus by reference, have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing.
The Company files annual, quarterly and current reports, proxy statements and other information with the SEC.
The SEC also maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The address of that site is www.sec.gov.Our website is located at
https://The registration statementRegistration Statement containing this prospectus, including exhibits to the registration statement,Registration Statement, provides additional information about us and the common stockCommon Stock offered under this prospectus. The registration statementRegistration Statement can be read at the SEC website.
The SEC allows us to “incorporate by reference” information into this prospectus, which means that we can disclose important information about us by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus. This prospectus incorporates by reference the documents and reports listed below (other than portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) deemed to have been furnished and not filed in accordance with SEC rules, including Current Reports on Form 8-K furnished under Item 2.02 or Item 7.01 (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01), unless otherwise indicated therein):
| ● | Our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 9, 2021; |
| ● | Our Quarterly Reports on Form 10-Q for the quarterly periods ended June 30, 2021 and March 31, 2021, filed with the SEC on August 16, 2021 and May 17, 2021, respectively; |
| ● | Our Definitive Proxy Statement on Schedule 14A for a 2020 Special Meeting of Stockholders filed with the SEC on January 20, 2021; |
| ● | Our Current Reports on Form 8-K or 8-K/A, as applicable, filed with the SEC on September 21, 2021, August 3, 2021, July 8, 2021, May 26, 2021May 6, 2021, April 6, 2021, April 2, 2021, March 11, 2021, March 9, 2021, February 22, 2021 and January 4, 2021; and |
| ● | The description of our Common Stock included on our Current Report on Form 8-K, filed with the SEC on August 5, 2019 (File No. 001-38186), including any subsequent amendment or any report filed for the purpose of updating such description. |
We also incorporate by reference the information contained in all other documents we file with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) deemed to have been furnished and not filed in accordance with SEC rules, including Current Reports on Form 8-K furnished under Item 2.02 or Item 7.01 (including any financial statements or exhibits relating thereto furnished pursuant to Item 9.01, unless otherwise indicated therein)) after the initial filing of the registration statementRegistration Statement of which this prospectus forms a part and prior to the completion of the offering of all securities covered by this prospectus and any accompanying prospectus supplement. The information contained in any such document will be considered part of this prospectus from the date the document is filed with the SEC.
If you make a request for such information in writing or by telephone, we will provide you, without charge, a copy of any or all of the information incorporated by reference into this prospectus. Any such request should be directed to:
7701 Independence Ave
Kansas City, Missouri 64125
(816) 241-4888
Attention: Bruce Heinemann
You should rely only on the information contained in, or incorporated by reference into, this prospectus, in any accompanying prospectus supplement or in any free writing prospectus filed by us with the SEC. We have not authorized anyone to provide you with different or additional information. You should not assume that the information in this prospectus or in any document incorporated by reference is accurate as of any date other than the date on the front cover of the applicable document.
Custom Truck One Source, Inc.
207,745,626 Shares of Common Stock
PROSPECTUS
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.Other Expenses of Issuance and Distribution
The following table sets forth the various expenses expected to be incurred by the Company in connection with the sale and distribution of the securities being registered hereby, other than underwriting discounts and commissions. All amounts are estimated except the SEC registration fee SEC registration fee.
| SEC registration fee | $ | 85,330 | |
| Accounting fees and expenses | (1) | ||
| Legal fees and expenses | (1) | ||
| Printing and engraving expenses | (1) | ||
| Registrar and Transfer Agent’s fees | (1) | ||
| Miscellaneous fees and expenses | (1) | ||
| Total | (1) | ||
| SEC registration fee | $ | 205,345.33 | ||
| FINRA filing fee | — | |||
| Printing and engraving expenses | (1) | |||
| Legal fees and expenses | (1) | |||
| Accounting fees and expenses | (1) | |||
| Blue Sky, qualification fees and expenses | (1) | |||
| Transfer Agent fees and expenses | (1) | |||
| Miscellaneous expenses | (1) | |||
| Total | 205,345.33 | (1) |
| (1) | Estimated expenses are not presently known. The foregoing sets forth the general categories of expenses that we anticipate we will incur in connection with the offering of securities under this |
Item 15. Indemnification of Directors and Officers
Subsection (a) of Section 145 of the General Corporation Law of the DGCL empowers a corporation to indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person 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 the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person 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 the person’s conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to 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 the person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith; that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and the indemnification provided for by Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators. Section 145 also empowers the corporation to purchase and maintain insurance on behalf of any person who 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 any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
II-1
Section 102(b)(7) of the DGCL provides that a corporation’s certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit.
The Company’s certificate of incorporation provides that to the fullest extent permitted by the DGCL, a director of the Company shall not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director. The Company’s bylaws provide that to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal administrative or investigative (a “Proceeding”), by reason of the fact that the person is the legal representative, is or was a director or officer of the corporation or while serving as a director or officer of the Company, is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fee, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred by such person in connection with any such Proceeding. With respect to any such Proceeding initiated by any such indemnified person, the Company will be required to indemnity such person only if the Proceeding was authorized in the specific case by the board of directors of the Company.
The Company entered into indemnification agreements with its directors and executive officers, in addition to the indemnification provided for in its certificate of incorporation and bylaws, and intends to enter into indemnification agreements with any new directors and executive officers in the future.
The Company has purchased and intends to maintain insurance on behalf of any person who is or was a director or officer of the Company against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain inclusions.
Pursuant to the Agreement and Plan of Merger, dated as of April 7, 2019 (as amended, the “Merger Agreement”), pursuant to which NESCO Holdings I, Inc. became a wholly owned subsidiary of the Transactions were consummated,Company, from and after July 31, 2019 (the “Effective Time”), the Company and Capitol Investment Merger Sub 2, LLC, a wholly owned subsidiary of the Company, are required to indemnify and hold harmless each presentdirector as of the Effective Time and former director and officer of Nesco Holdings I, Inc. and the Company, and their respective subsidiaries against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, assessment, arbitration, proceeding or investigation, in each case that is by or before any federal, state, provincial, municipal, local or foreign government, government authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court or tribunal, or arbitrator, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent Nesco, Nesco Holdings I, Inc.such entities or their subsidiaries, as the case may be, would have been permitted under applicable law and its respective certificate of incorporation, certificate of formation, bylaws, limited liability company agreement or other organizational documents in effect on the date of the Merger Agreement to indemnify such person (including the advancing of expenses as incurred to the fullest extent permitted under applicable law). In addition, pursuant to the Merger Agreement, the Company shall, and shall cause Capitol Investment Merger Sub 2, LLC and its subsidiaries to (i) maintain until July 31, 2025 provisions in their respective certificate of incorporation, certificate formation, bylaws, limited liability company agreement and other organizational documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of such entities’ officers, directors, employees, and agents that are no less favorable that the provisions in such documents applicable as of the date of the Merger Agreement and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of such indemnified persons, except as required by law.
II-2
Furthermore, pursuant to the Merger Agreement, the Company is required to maintain until July 31, 2025, effective directors’ and officers’ liability insurance covering individuals that were covered by Nesco Holdings I, Inc.’s and its subsidiaries’ directors’ and officers’ liability insurance policies as of the date of the Merger Agreement, on terms not less favorable than the terms of such existing policies, subject to certain limitations. In addition, prior to the Effective Time, the Company purchased a six-year prepaid “tail policy” for the non-cancellable extension of the directors’ and officers’ liability coverage of the Company’s then existing directors’ and officers’ insurance policies for a claims reporting or discovery period of at least six years from and after the Effective Time with respect to any claim related to any period of time at or prior to the effective timeEffective Time of the merger.
The above discussion of Section 145 of the DGCL, the Company’s Certificate of Incorporation, the Company’s Bylaws and the applicable provisions of the Merger Agreement is not intended to be exhaustive and is respectively qualified in its entirety by Section 145 of the DGCL, the Company’s Certificate of Incorporation, the Company’s Bylaws and the Merger Agreement.
Item 16.
Exhibits(a) Exhibits.
| Exhibit Number | Exhibit Description | Incorporated by Reference to Filings Indicated | Provided Herewith | |||||||
| Form | Exhibit No. | Filing Date | ||||||||
| 2.1 | Common Stock Purchase Agreement, dated as of December 3, 2020 | 8-K | 10.2 | 4/2/2021 | ||||||
| 3.1 | Amended and Restated Certificate of Incorporation, as amended. | 8-K | 3.1 | 4/2/2021 | ||||||
| 3.2 | Amended and Restated Bylaws. | 8-K | 3.2 | 4/2/2021 | ||||||
| 4.1 | Form of Common Stock Certificate. | S-1/A | 4.2 | 8/11/2017 | ||||||
| 4.2 | Description of Capital Stock. | 10-K | 4.6 | 3/9/2021 | ||||||
| 4.3 | Registration Rights Agreement, dated as of April 1, 2021 | 8-K | 10.4 | 4/2/2021 | ||||||
| 4.4 | 8-K | 10.5 | 4/2/2021 | |||||||
| 5.1 | Opinion of Latham & Watkins LLP. | X | ||||||||
| 23.1 | Consent of Independent Registered Public Accounting Firm relating to Nesco Holdings, Inc. | X | ||||||||
| 23.2 | Consent of Independent Auditors relating to Custom Truck One Source, L.P. | X | ||||||||
| 23.3 | Consent of Latham & Watkins LLP (included in Exhibit 5.1). | X | ||||||||
| 24.1 | Powers of Attorney (incorporated by reference to the signature page hereto). | |||||||||
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; |
II-3
| (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) (§ 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and |
| (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), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act 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| (2) | That, for the purpose of determining any liability under the Securities Act, 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 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 the 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. |
II-4
| (5) | 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 |
| (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 undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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 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 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, 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 and will be governed by the final adjudication of such issue. |
II-5
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Fort Wayne,Kansas City, State of Indiana,Missouri, on November 13, 2019.
| By: | /s/ | |||
| Name: | Bradley Meader | |||
| Title: | Chief Financial Officer | |||
II-6
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons on November 13, 2019, in the capacities indicated:
| Name | Title | Date | ||
| /s/ | Chief Executive Officer and Director (Principal Executive Officer) | September 23, 2021 | ||
| /s/ | Chief Financial Officer (Principal Financial Officer) | September 23, 2021 | ||
| /s/ R. Todd Barrett | Chief Accounting Officer (Principal Accounting Officer) | September 23, 2021 | ||
| R. Todd Barrett | ||||
| Director (Chairman) | September 23, 2021 | |||
| Director | September 23, 2021 | |||
| Director | September 23, 2021 | |||
| Director | September 23, 2021 | |||
| Director | September 23, 2021 | |||
| Director | September 23, 2021 | |||
| Director | September 23, 2021 | |||
| * | Director | September 23, 2021 | ||
| David Glatt | ||||
| * | Director | September 23, 2021 | ||
| Paul Bader | ||||
| * | Director | September 23, 2021 | ||
| Rahman D’Argenio | ||||
| * By: | /s/ Bradley Meader | |
Name: Bradley Meader Title: Chief Financial Officer |
II-7