UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
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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
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Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On June 15, 2023, upon conclusion of the annual meeting of stockholders (the “Annual Meeting”) of Custom Truck One Source, Inc. (the “Company”), Bryan Kelln notified the Company of his decision to resign as a director from the Board of Directors of the Company (the “Board”), effective immediately. Mr. Kelln advised the Company that his decision was not because of any disagreement with the Company, its management or the Board on any matter, whether related to the Company’s operations, policies, practices or otherwise.
On June 19, 2023, the Board elected Ryan McMonagle, the Chief Executive Officer of the Company, as a Class C Director, to serve until the Company’s 2025 annual meeting of stockholders and until his successor is duly elected and qualified or until his earlier death, resignation, disqualification or removal.
As previously reported, in connection with Mr. McMonagle’s appointment as the Chief Executive Officer, the Company and Mr. McMonagle entered into an amended and restated employment agreement, dated December 7, 2022 (the “McMonagle Employment Agreement”). Pursuant to the McMonagle Employment Agreement, as soon as reasonably practicable following the effective date of the McMonagle Employment Agreement, Mr. McMonagle will be appointed as a member of the Board and, following expiration of Mr. McMonagle’s term on the Board, the Company will continue to nominate him for election to the Board while he remains Chief Executive Officer.
There has not been any transaction or currently proposed transaction, in which the Company was or is to be a participant and the amount involved exceeds $120,000, excluding any compensation resulting from Mr. McMonagle’s employment with the Company, and in which Mr. McMonagle had or will have a direct or indirect material interest since the beginning of the Company’s last fiscal year. Mr. McMonagle will not receive any fees for his service on the Board.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On June 15, 2023, at the Annual Meeting, the Company’s stockholders approved the amendment and restatement of the Restated Certificate of Incorporation of the Company to reflect director voting rights consistent with the Company’s Amended and Restated Stockholders’ Agreement, which also provides greater flexibility for the Board to change its size or composition without impacting the voting control of Platinum Equity Advisors, LLC’s (“Platinum”) director designees in certain circumstances (as amended and restated, the “Third Amended and Restated Certificate of Incorporation”).
The Third Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware and became effective on June 15, 2023 and is attached hereto as Exhibit 3.1.
Additionally, as previously reported, on April 14, 2023, the Company, certain affiliates of Platinum, Energy Capital Partners, LLC (“ECP”), Capitol Acquisition Management IV LLC and Capitol Acquisition Founder IV LLC (together, “Capitol”) and certain other stockholders of the Company entered into a Second Amended and Restated Stockholders’ Agreement (the “Second Amended and Restated Stockholders’ Agreement”), to account for certain administrative updates to the Amended and Restated Stockholders’ Agreement of the Company, dated April 1, 2021. Upon the effectiveness of the Third Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware, the Second Amended and Restated Stockholders’ Agreement has become effective.
Item 5.07. Submission of Matters to a Vote of Security Holders.
At the Annual Meeting on June 15, 2023, stockholders of the Company voted on the following proposals, as described in more detail in the Company's definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission on April 28, 2023:
Proposal One: To elect four Class A directors to serve until the 2026 annual meeting of stockholders and until their successors are duly elected and qualified. In accordance with the voting results listed below, each of the nominees was elected as a Class A director.
| Nominee | For | Withheld | Broker Non-Votes | |||
| Paul Bader | 176,229,583 | 21,203,702 | 8,871,626 | |||
| Rahman D’Argenio | 169,363,866 | 28,069,419 | 8,871,626 | |||
| Mark D. Ein | 171,550,815 | 25,882,470 | 8,871,626 | |||
| David Glatt | 170,329,450 | 27,103,835 | 8,871,626 |
Proposal Two: To approve the Third Amended and Restated Certificate of Incorporation. In accordance with the voting results listed below, the Third Amended and Restated Certificate of Incorporation was approved by stockholders.
| For | Against | Abstain | Broker Non-Votes | |||
| 196,929,539 | 499,255 | 4,491 | 8,871,626 |
Proposal Three: To ratify the appointment of Ernst & Young LLP as the Company’s independent registered public accounting firm for fiscal year ending December 31, 2023. In accordance with the voting results listed below, the appointment of Ernst & Young LLP was ratified by stockholders.
| For | Against | Abstain | Broker Non-Votes | |||
| 205,920,883 | 13,774 | 370,254 | — |
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Description | |
| 3.1 | Third Amended and Restated Certificate of Incorporation of Custom Truck One Source, Inc. (filed as Annex A to Custom Truck One Source, Inc.’s Definitive Proxy Statement on Schedule 14A, filed on April 28, 2023, File No. 001-38186, and incorporated herein by reference) | |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: | June 20, 2023 | Custom Truck One Source, Inc. |
| /s/ Christopher J. Eperjesy | ||
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Christopher J. Eperjesy Chief Financial Officer | ||
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