Pivotal Investment Corp II (Form: S-4/A, Received: 12/04/2020 15:28:02)

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

Emerging growth company

As filed with the Securities and Exchange Commission on December 4, 2020

Registration No. 333-249248

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

AMENDMENT NO. 3

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

PIVOTAL INVESTMENT CORPORATION II

(Exact name of Registrant as specified in its charter)


Delaware	6770	83-4109918
(State or other jurisdiction of incorporation or organization)	(Primary standard industrial classification code number)	(I.R.S. Employer Identification Number)

c/o Graubard Miller

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

(212) 818-8800

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

Jonathan J. Ledecky, Chief Executive Officer

Pivotal Investment Corporation II

c/o Graubard Miller

The Chrysler Building

405 Lexington Avenue

New York, New York 10174

(212) 818-8800

(Name, address, including zip code, and telephone number, including area code, of agent for service)

With copies to:

David Alan Miller, Esq.
Jeffrey M. Gallant, Esq.
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 818-8800
Fax: (212) 818-8881

Mitchell S. Presser, Esq.

Justin R. Salon, Esq.

Morrison & Foerster LLP

250 West 55th Street

New York, New York 10019

Telephone: (212) 468-8000

Fax: (212) 468-7900

Thomas R. Burton, III, Esq.

Sahir Surmeli, Esq.

Jeffrey Schultz, Esq.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

One Financial Center

Boston, MA 02111

Telephone: (617) 542-6000

Fax: (617) 542-2241

Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this Registration Statement becomes effective and all other conditions to the transactions contemplated by the Agreement and Plan of Reorganization described in the included proxy statement/prospectus have been satisfied or waived.

If the securities being registered on this form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box: ☐

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

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 7(a)(2)(B) of the Securities Act. ☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ☐

CALCULATION OF REGISTRATION FEE



Title of Each Class of Security to Be Registered	Amount to Be Registered	Proposed Maximum Offering Price Per Security	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Class A Common Stock	100,000,000^{(1) (2)}	$11.50⁽³⁾	$1,150,000,000.00	$125,465.00⁽⁴⁾⁽⁵⁾

(1)

Represents the maximum number of shares of the registrant’s of Class A common stock to be issued or reserved for issuance by Pivotal Investment Corporation II to the security holders of XL Hybrids, Inc., a Delaware corporation, upon consummation of the business combination described herein. The aggregate amount of shares being registered includes the shares of Pivotal common stock issuable upon exercise of options and warrants that are to be assumed by Pivotal in the Merger.

(2)	Pursuant to Rule 416(a) of the Securities Act, there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

(3)

Estimated solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the registrant’s Class A common stock on September 24, 2020 (a date within five business days prior to the date of this Registration Statement). This calculation is in accordance with Rule 457(f)(1) of the Securities Act of 1933, as amended.

(4)	Calculated pursuant to Rule 457 of the Securities Act by multiplying the proposed maximum aggregate offering price of securities to be registered by 0.0001091.

(5)	Previously paid.

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, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

EXPLANATORY NOTE

Pivotal Investment Corporation II is filing this Amendment No. 3 to its registration statement on Form S-4 (File No. 333-249248) (the “Registration Statement”) as an exhibits-only filing. Accordingly, this amendment consists only of the facing page, this explanatory note, Item 21 of Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibits. The remainder of the Registration Statement is unchanged and has therefore been omitted.


Exhibit No.	Description	Included	Form		Filing Date

10.8	Form of Letter Agreement from each of the Registrant’s initial shareholders, officers and directors.	By Reference		S-1	June 13, 2019

10.9	Investment Management Trust Agreement, dated as of July 11, 2019, between Continental Stock Transfer & Trust Company and the Registrant.	By Reference		8-K	July 16, 2019

10.10	Registration Rights Agreement , dated as of July 11, 2019, with each of the Registrant’s initial shareholders, officers and directors.	By Reference		8-K	July 16, 2019

10.11	Forward Purchase Contract.	By Reference		8-K	July 16, 2019

10.12	Form of XL Fleet Corp. 2020 Equity Incentive Plan.	Annex C

21.1	Subsidiaries of the Registrant.	Herewith

23.1	Consent of Marcum LLP (Pivotal Investment Corporation II).	**

23.2	Consent of Marcum LLP (XL Hybrids, Inc.).	**

23.3	Consent of Graubard Miller.	**

23.4	Consent of Morrison & Foerster LLP.	**

23.5	Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.	**

24.1	Power of Attorney (including on the signature page of the initial filing of this registration statement).	**

99.1	Form of Proxy Card.	Herewith

99.2	Consent of Dimitri N. Kazarinoff to be named as a director.	**

99.3	Consent of Thomas J. Hynes, III to be named as a director.	**

99.4	Consent of Debora M. Frodl to be named as a director.	**

99.5	Consent of Declan P. Flanagan to be named as a director.	**

99.6	Consent of Christopher Hayes to be named as a director.	**

99.7	Consent of Niharika Ramdev to be named as a director.	**

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

**	Previously filed.

***	To be filed by amendment.

†	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.

II-2

SIGNATURES

Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in New York, New York, on the 4^th day of December, 2020.


By:		/s/ Jonathan J. Ledecky
		Jonathan J. Ledecky
		Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.


Name	Title	Date

/s/ Jonathan J. Ledecky Jonathan J. Ledecky	Chairman of the Board and Chief Executive Officer (Principal Executive Officer)	December 4, 2020

/s/ James Brady James Brady	Chief Financial Officer (Principal Financial and Accounting Officer)	December 4, 2020

* Sarah Sclarsic	Director	December 4, 2020

* Kevin Griffin	Director	December 4, 2020

* Katrina Adams	Director	December 4, 2020

* Efrat Epstein	Director	December 4, 2020


* By:		/s/ Jonathan J. Ledecky
		Jonathan J. Ledecky, as attorney-in-fact

Exhibit 21.1

Subsidiaries of Registrant



Name	Percentage Ownership	State of Organization

PIC II Merger Sub Corp.	100%	Delaware

Exhibit 99.1

PRELIMINARY PROXY

PIVOTAL INVESTMENT CORPORATION II

c/o Graubard Miller

The Chrysler Building

405 Lexington Avenue, 11th Floor

New York, NY 10174

Tel. (212) 818-8800

ANNUAL MEETING

YOUR VOTE IS IMPORTANT

THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS

FOR THE ANNUAL MEETING TO BE HELD ON

DECEMBER [●], 2020

The undersigned, revoking any previous proxies relating to these shares, hereby acknowledges receipt of the Notice and Proxy Statement/Prospectus in connection with the annual meeting to be held at [●] EST on December [●], 2020 at the offices of Graubard Miller at The Chrysler Building, 405 Lexington Avenue, 11th Floor, New York, New York 10174, and hereby appoints Jonathan J. Ledecky and James Brady, and each of them (with full power to act alone), the attorneys and proxies of the undersigned, with power of substitution to each, to vote all ordinary shares, of Pivotal Investment Corporation II (“Pivotal II”) registered in the name provided, which the undersigned is entitled to vote at the annual meeting, and at any adjournments thereof, with all the powers the undersigned would have if personally present. Without limiting the general authorization hereby given, said proxies are, and each of them is, instructed to vote or act as follows on the proposals set forth in this Proxy Statement/Prospectus.

THIS PROXY WILL BE VOTED AS DIRECTED. IF NO DIRECTIONS ARE GIVEN, THIS PROXY WILL BE VOTED “FOR” PROPOSAL 1 (THE BUSINESS COMBINATION PROPOSAL) BELOW, “FOR” PROPOSAL 2 (THE PIPE PROPOSAL) BELOW, “FOR” EACH OF THE PROPOSALS 3 TO 5 (THE CHARTER PROPOSALS) BELOW, FOR THE ELECTION OF ALL OF THE DIRECTORS IN PROPOSAL 6 (THE DIRECTOR ELECTION PROPOSAL) BELOW, “FOR” PROPOSAL 7 (THE INCENTIVE PLAN PROPOSAL) BELOW, AND “FOR” PROPOSAL 8 (THE ADJOURNMENT PROPOSAL) BELOW.

THE PIVOTAL II BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSAL 1 (THE BUSINESS COMBINATION PROPOSAL) BELOW, “FOR” PROPOSAL 2 (THE PIPE PROPOSAL) BELOW, “FOR” EACH OF THE PROPOSALS 3 TO 5 (THE CHARTER PROPOSALS) BELOW, FOR THE ELECTION OF ALL OF THE DIRECTORS IN PROPOSAL 6 (THE DIRECTOR ELECTION PROPOSAL) BELOW, “FOR” PROPOSAL 7 (THE INCENTIVE PLAN PROPOSAL) BELOW, AND “FOR” PROPOSAL 8 (THE ADJOURNMENT PROPOSAL) BELOW.

THE APPROVAL OF THE BUSINESS COMBINATION PROPOSAL, PIPE PROPOSAL, CHARTER PROPOSALS, DIRECTOR ELECTION PROPOSAL, AND INCENTIVE PLAN PROPOSAL IS A CONDITION TO THE CONSUMMATION OF THE BUSINESS COMBINATION.

PLEASE RETURN THIS PROXY AS SOON AS POSSIBLE.

PROXY


1.	To approve and adopt the Merger Agreement, and the transactions contemplated thereby, including the merger of PIC II Merger Sub Corp. with and into XL Hybrids, Inc., and the issuance of shares of Pivotal II’s Class A common stock to XL’s securityholders in the Merger.	FOR [ ]	AGAINST [ ]	ABSTAIN [ ]

To approve amendments to Pivotal II’s current amended and restated certificate of incorporation to:

3.	change the name of Pivotal II to “XL Fleet Corp.”;	FOR [ ]	AGAINST [ ]	ABSTAIN [ ]

4.	increase the number of shares of Class A common stock Pivotal II is authorized to issue to 350,000,000 shares and remove the provisions for Pivotal’s current Class B common stock; and	FOR [ ]	AGAINST [ ]	ABSTAIN [ ]

5.	remove the various provisions applicable only to special purpose acquisition companies and make certain other changes that the Pivotal II board deems appropriate for a public operating company.	FOR [ ]	AGAINST [ ]	ABSTAIN [ ]

6.	To elect nine directors who, upon the consummation of the Business Combination, will be the directors of Pivotal II, in the classes set forth below:

	Class A (to serve until 2021 annual meeting or until their successors are elected and qualified or their earlier resignation or removal):
		FOR	WITHHOLD
	Sarah Sclarsic	[ ]	[ ]
	Declan P. Flanagan	[ ]	[ ]
	Debora Frodl	[ ]	[ ]

	Class B (to serve until 2023 annual meeting or until their successors are elected and qualified or their earlier resignation or removal):
		FOR	WITHHOLD
	Kevin Griffin	[ ]	[ ]
	Niharika Ramdev	[ ]	[ ]
	Christopher Hayes	[ ]	[ ]

	Class C (to serve until 2023 annual meeting or until their successors are elected and qualified or their earlier resignation or removal):
		FOR	WITHHOLD
	Jonathan J. Ledecky	[ ]	[ ]
	Thomas J. Hynes III	[ ]	[ ]
	Dimitri N. Kazarinoff	[ ]	[ ]

7.	To approve the 2020 Equity Incentive Plan.	FOR [ ]	AGAINST [ ]	ABSTAIN [ ]

8.	To adjourn the annual meeting to a later date or dates if it is determined by the officer presiding over the annual meeting that more time is necessary for Pivotal II to consummate the Merger and the other transactions contemplated by the Merger Agreement.	FOR [ ]	AGAINST [ ]	ABSTAIN [ ]

	[ ] MARK HERE FOR ADDRESS CHANGE AND NOTE AT RIGHT

PLEASE MARK, DATE AND RETURN THIS PROXY PROMPTLY. ANY VOTES

RECEIVED AFTER A MATTER HAS BEEN VOTED UPON WILL NOT BE COUNTED.

Dated: 2020

Stockholder’s Signature

Signature should agree with name printed hereon. If stock is held in the name of more than one person, EACH joint owner should sign. Executors, administrators, trustees, guardians, and attorneys should indicate the capacity in which they sign. Attorneys should submit powers of attorney.