Amended Current Report Filing (8-k/a)
December 23 2020 - 4:48PM
Edgar (US Regulatory)
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)
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Delaware
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001-38971
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83-4109918
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification No.)
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145 Newton Street
Boston, MA
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02135
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(Address of principal executive offices)
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(Zip Code)
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(617) 718-0329
(Registrants 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:
☐
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Written communications pursuant to Rule 425 under the Securities Act
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☐
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Soliciting material pursuant to Rule 14a-12 under the
Exchange Act
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☐
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
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☐
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
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Securities registered pursuant to Section 12(b)
of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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Common Stock, par value $0.0001 per share
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XL
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New York Stock Exchange
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Redeemable Warrants, exercisable for shares of common stock at an exercise price of $11.50 per share
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XL WS
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New York Stock Exchange
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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.
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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The information in Item 3.03 of the Original Report is incorporated by reference herein.
Item 5.05.
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Amendments to the Registrants Code of Ethics, or Waiver of Provision of the Code of
Ethics.
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In connection with the Business Combination, on December 16, 2020, Pivotals 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.
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Submission of Matters to a Vote of Securityholders.
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On December 21, 2020, Pivotal held its Annual Meeting. At the Annual Meeting, Pivotals 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 XLs securityholders in the Business
Combination. The following is a tabulation of the votes with respect to this proposal, which was approved by Pivotals stockholders:
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For
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Against
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Abstain
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Broker Non-Votes
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17,723,325
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8,364
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12,574
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0
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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 Pivotals stockholders:
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For
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Against
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Abstain
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Broker Non-Votes
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17,028,425
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512,776
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203,062
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0
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2
3. Proposals to approve the following
amendments to Pivotals 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 Pivotals stockholders:
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For
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Against
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Abstain
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Broker Non-Votes
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17,710,601
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9,965
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23,697
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0
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(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
Pivotals stockholders:
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For
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Against
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Abstain
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Broker Non-Votes
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17,218,595
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310,557
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215,111
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0
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(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
Pivotals stockholders:
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For
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Against
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Abstain
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Broker Non-Votes
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17,635,006
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32,595
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76,662
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0
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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:
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Director
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For
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Withheld
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Broker Non-Vote
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Class A
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Sarah Sclarsic
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17,231,356
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512,907
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0
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Declan P. Flanagan
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17,699,522
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44,741
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0
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Debora Frodl
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17,700,170
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44,093
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0
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Class B
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Kevin Griffin
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17,226,083
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518,180
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0
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Niharika Ramdev
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17,690,971
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53,292
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0
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Christopher Hayes
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17,699,481
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44,782
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0
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Class C
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Jonathan J. Ledecky
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17,223,782
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520,481
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0
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Thomas J. Hynes, III
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17,695,790
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48,473
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0
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Dimitri Kazarinoff
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17,690,785
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53,478
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0
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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 Pivotals stockholders:
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For
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Against
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Abstain
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Broker Non-Votes
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16,865,637
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646,395
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232,231
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0
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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.
3
Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits.
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Exhibit
No.
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Description
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Included
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Form
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Filing Date
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2.1*
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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.
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By Reference
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S-4
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December 4, 2020
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3.1
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Second Amended and Restated Certificate of Incorporation.
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By Reference
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8-K
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December 23, 2020
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3.2
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Amended and Restated Bylaws.
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By Reference
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8-K
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December 23, 2020
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4.1
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Specimen Common Stock Certificate.
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By Reference
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8-K
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December 23, 2020
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4.2
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Specimen Warrant Certificate.
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By Reference
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8-K
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December 23, 2020
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4.3
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Warrant Agreement, dated as of July 11, 2019, between Continental Stock Transfer & Trust Company and the Registrant.
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By Reference
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8-K
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July 16, 2019
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10.1
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Supply Agreement, dated as of July 19, 2019, by and between XL Hybrids, Inc. and Parker-Hannifin Corporation.
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By Reference
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S-4/A
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November 10, 2020
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10.2#
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Employment Agreement, dated as of September 30, 2019, by and between XL Hybrids, Inc. and Dimitri N. Kazarinoff.
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By Reference
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S-4
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October 2, 2020
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10.3#
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XL Hybrids, Inc. 2010 Equity Incentive Plan, including form of stock option agreement and form of restricted stock agreement.
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By Reference
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S-4
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October 2, 2020
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10.4
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Form of Subscription Agreement.
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By Reference
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8-K
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September 18, 2020
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10.5
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Registration Rights Agreement.
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By Reference
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S-4
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October 2, 2020
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10.6
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Lock-Up Agreement.
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By Reference
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S-4
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October 2, 2020
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10.7
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Form of Letter Agreement from each of the Registrants initial shareholders, officers and directors.
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By Reference
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S-1
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June 13, 2019
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10.8
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XL Fleet Corp. 2020 Equity Incentive Plan.
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By Reference
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S-4
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October 2, 2020
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10.9
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XL Fleet Corp. 2020 Equity Incentive Plan Form of Stock Option Agreement.
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By Reference
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8-K
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December 23, 2020
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10.10
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XL Fleet Corp. 2020 Equity Incentive Plan Form of Restricted Stock Unit Agreement.
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By Reference
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8-K
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December 23, 2020
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10.11
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Form of Indemnification Agreement between the Registrant and each officer and director.
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By Reference
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8-K
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December 23, 2020
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14
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Amended and Restated Corporate Code of Conduct and Ethics and Whistleblower Policy.
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By Reference
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8-K
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December 23, 2020
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21
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Subsidiaries of the Registrant.
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By Reference
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8-K
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December 23, 2020
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*
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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.
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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.
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#
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Indicates management contract or compensatory plan or arrangement.
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4
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.
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XL FLEET CORP.
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Date: December 23, 2020
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By:
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/s/ Dimitri N. Kazarinoff
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Name:
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Dimitri N. Kazarinoff
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Title:
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Chief Executive Officer
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5
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