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XL XL Fleet

Filed: 23 Dec 20, 4:47pm

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K/A

(Amendment No. 1)

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): December 21, 2020

 

 

XL FLEET CORP.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware 001-38971 83-4109918

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

145 Newton Street

Boston, MA

 02135
(Address of principal executive offices) (Zip Code)

(617) 718-0329

(Registrant’s telephone number, including area code)

Pivotal Investment Corporation II

c/o Graubard Miller

The Chrysler Building

405 Lexington Avenue, 11th Floor

New York, New York 10174

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Trading

Symbol(s)

 

Name of each exchange

on which registered

Common Stock, par value $0.0001 per share XL New York Stock Exchange
Redeemable Warrants, exercisable for shares of common stock at an exercise price of $11.50 per share XL WS New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


INTRODUCTORY NOTE

On December 23, 2020, XL Fleet Corp., a Delaware corporation (the “Company”) (f/k/a Pivotal Investment Corporation II (“Pivotal”)), filed a Current Report on Form 8-K (the “Original Report”) to report the consummation of the Business Combination and related matters under Items 1.01, 1.02, 2.01, 3.02, 3.03, 5.01, 5.02, 5.06 and 9.01 of Form 8-K. Due to the large number of events to be reported under the specified items of Form 8-K, this Amendment No. 1 to Form 8-K is being filed to amend the Original Report to include additional matters related to the Transactions under Items 5.03, 5.05 and 5.07 of Form 8-K.

Capitalized terms used herein by not defined herein have the meanings given to such terms in the Original Report.

 

Item 5.03.

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information in Item 3.03 of the Original Report is incorporated by reference herein.

 

Item 5.05.

Amendments to the Registrant’s Code of Ethics, or Waiver of Provision of the Code of Ethics.

In connection with the Business Combination, on December 16, 2020, Pivotal’s board of directors approved and adopted an Amended and Restated Corporate Code of Conduct and Ethics and Whistleblower Policy (the “Code of Ethics”) applicable to all employees, officers, consultants and independent contractors of the Company. The Code of Ethics replaced the Pivotal Investment Corporation II Code of Ethics (the “Pivotal Code of Ethics”), which was previously adopted by Pivotal in connection with its initial public offering in July 2019. The Code of Ethics is filed with the Original Report as Exhibit 14 and is incorporated herein by reference and the foregoing description of the Code of Ethics is qualified by reference thereto.

 

Item 5.07.

Submission of Matters to a Vote of Securityholders.

On December 21, 2020, Pivotal held its Annual Meeting. At the Annual Meeting, Pivotal’s stockholders considered the following proposals:

1.        A proposal to approve and adopt the Merger Agreement, and the transactions contemplated thereby, including the merger of Merger Sub with and into Legacy XL, with Legacy XL surviving as the wholly owned subsidiary of Pivotal, and the issuance of shares of Common Stock to Legacy XL’s securityholders in the Business Combination. The following is a tabulation of the votes with respect to this proposal, which was approved by Pivotal’s stockholders:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

17,723,325

 8,364 12,574 0

Prior to the Annual Meeting, holders of 10,992 shares of Pivotal Class A Common Stock sold in its initial public offering exercised their rights to convert those shares to cash at a conversion price of approximately $10.09067738 per share, or an aggregate of approximately $0.11 million.

2.         A proposal to approve the issuance of an aggregate of 15,000,000 shares of Common Stock in a private placement at a price of $10.00 per share, for an aggregate purchase price of $150,000,000. The following is a tabulation of the votes with respect to this proposal, which was approved by Pivotal’s stockholders:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

17,028,425

 512,776 203,062 0

 

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3.        Proposals to approve the following amendments to Pivotal’s amended and restated certificate of incorporation to:

(i)        change the name of the Company from Pivotal Investment Corporation II to “XL Fleet Corp.” The following is a tabulation of the votes with respect to this proposal, which was approved by Pivotal’s stockholders:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

17,710,601

 9,965 23,697 0

(ii)        increase the number of shares of Pivotal Class A Common Stock that Pivotal is authorized to issue to 350,000,000 shares and remove the provisions for the Pivotal Class B Common Stock. The following is a tabulation of the votes with respect to this proposal, which was approved by Pivotal’s stockholders:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

17,218,595

 310,557 215,111 0

(iii)        remove the various provisions applicable only to special purpose acquisition companies and make certain other changes that the Pivotal board of directors deems appropriate for a public operating company. The following is a tabulation of the votes with respect to this proposal, which was approved by Pivotal’s stockholders:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

17,635,006

 32,595 76,662 0

4.        A proposal to elect nine directors who, upon the consummation of the Business Combination, are directors of the Company, in the classes set forth below. The following is a tabulation of the votes with respect to each director elected at the Annual Meeting:

 

Director

  For   Withheld   Broker Non-Vote 

Class A

      

Sarah Sclarsic

   17,231,356    512,907    0 

Declan P. Flanagan

   17,699,522    44,741    0 

Debora Frodl

   17,700,170    44,093    0 

Class B

      

Kevin Griffin

   17,226,083    518,180    0 

Niharika Ramdev

   17,690,971    53,292    0 

Christopher Hayes

   17,699,481    44,782    0 

Class C

      

Jonathan J. Ledecky

   17,223,782    520,481    0 

Thomas J. Hynes, III

   17,695,790    48,473    0 

Dimitri Kazarinoff

   17,690,785    53,478    0 

5.        A proposal to approve the 2020 Equity Incentive Plan. The following is a tabulation of the votes with respect to this proposal, which was approved by Pivotal’s stockholders:

 

For

 

Against

 

Abstain

 

Broker Non-Votes

16,865,637

 646,395 232,231 0

Because the proposal to adopt the Merger Agreement and to approve the Business Combination was approved, the proposal to adjourn the Annual Meeting to a later date or dates, if necessary, was not presented at the Annual Meeting.

 

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Item 9.01.

Financial Statements and Exhibits.

(d)    Exhibits.

 

Exhibit
No.
  Description  Included  Form  Filing Date
  2.1*  Agreement and Plan of Reorganization, dated as of September  17, 2020, by and among Pivotal Investment Corporation II, PIC II Merger Sub Corp. and XL Hybrids, Inc.  By Reference  S-4  December 4, 2020
  3.1  Second Amended and Restated Certificate of Incorporation.  By Reference  8-K  December 23, 2020
  3.2  Amended and Restated Bylaws.  By Reference  8-K  December 23, 2020
  4.1  Specimen Common Stock Certificate.  By Reference  8-K  December 23, 2020
  4.2  Specimen Warrant Certificate.  By Reference  8-K  December 23, 2020
  4.3  Warrant Agreement, dated as of July 11, 2019, between Continental Stock Transfer & Trust Company and the Registrant.  By Reference  8-K  July 16, 2019
10.1†  Supply Agreement, dated as of July 19, 2019, by and between XL Hybrids, Inc. and Parker-Hannifin Corporation.  By Reference  S-4/A  November 10, 2020
10.2#  Employment Agreement, dated as of September 30, 2019, by and between XL Hybrids, Inc. and Dimitri N. Kazarinoff.  By Reference  S-4  October 2, 2020
10.3#  XL Hybrids, Inc. 2010 Equity Incentive Plan, including form of stock option agreement and form of restricted stock agreement.  By Reference  S-4  October 2, 2020
10.4  Form of Subscription Agreement.  By Reference  8-K  September 18, 2020
10.5  Registration Rights Agreement.  By Reference  S-4  October 2, 2020
10.6  Lock-Up Agreement.  By Reference  S-4  October 2, 2020
10.7  Form of Letter Agreement from each of the Registrant’s initial shareholders, officers and directors.  By Reference  S-1  June 13, 2019
10.8  XL Fleet Corp. 2020 Equity Incentive Plan.  By Reference  S-4  October 2, 2020
10.9  XL Fleet Corp. 2020 Equity Incentive Plan Form of Stock Option Agreement.  By Reference  8-K  December 23, 2020
10.10  XL Fleet Corp. 2020 Equity Incentive Plan Form of Restricted Stock Unit Agreement.  By Reference  8-K  December 23, 2020
10.11  Form of Indemnification Agreement between the Registrant and each officer and director.  By Reference  8-K  December 23, 2020
14  Amended and Restated Corporate Code of Conduct and Ethics and Whistleblower Policy.  By Reference  8-K  December 23, 2020
21  Subsidiaries of the Registrant.  By Reference  8-K  December 23, 2020

 

*

Schedule and exhibits to this Exhibit omitted pursuant to Regulation S-K Item 601(b)(2). The Company agrees to furnish supplementally a copy of any omitted schedule or exhibit to the SEC upon request.

Certain confidential portions of this exhibit were omitted by means of marking such portions with asterisks because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed.

#

Indicates management contract or compensatory plan or arrangement.

 

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.

 

  XL FLEET CORP.
Date: December 23, 2020  By: 

/s/ Dimitri N. Kazarinoff

  Name: Dimitri N. Kazarinoff
  Title: Chief Executive Officer

 

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