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As Of Filer Filing For·On·As Docs:Size Issuer Agent 5/31/17 Daseke, Inc. S-8 5/31/17 10:428K Merrill Corp-MD/FA |
Document/Exhibit Description Pages Size
1: S-8 Registration of Securities to be Offered to HTML 76K
Employees Pursuant to an Employee
Benefit Plan
6: EX-4.10 Instrument Defining the Rights of Security Holders HTML 33K
7: EX-4.11 Instrument Defining the Rights of Security Holders HTML 35K
2: EX-4.3 Instrument Defining the Rights of Security Holders HTML 115K
3: EX-4.4 Instrument Defining the Rights of Security Holders HTML 21K
4: EX-4.5 Instrument Defining the Rights of Security Holders HTML 21K
5: EX-4.6 Instrument Defining the Rights of Security Holders HTML 21K
8: EX-5.1 Opinion re: Legality HTML 13K
9: EX-23.1 Consent of Experts or Counsel HTML 7K
10: EX-23.2 Consent of Experts or Counsel HTML 8K
As filed with the Securities and Exchange Commission on May 31, 2017
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
DASEKE, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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47-3913221 |
15455 Dallas Parkway, Suite 440
Addison, Texas 75001
(Address of principal executive offices, including zip code)
DASEKE, INC. 2017 OMNIBUS INCENTIVE PLAN
(Full title of the plan)
Executive Vice President and
Chief Financial Officer
Daseke, Inc.
15455 Dallas Parkway, Suite 440
Dallas, Texas 75001
(972) 248-0412
(Name, address and telephone number of agent for service)
copy to:
Alan J. Bogdanow
Lanchi D. Huynh
Vinson & Elkins L.L.P.
2001 Ross Avenue, Suite 3700
(214) 220-7700
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
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Large accelerated filer o |
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Accelerated filer x |
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Non-accelerated filer o (Do not check if smaller reporting company) |
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Smaller Reporting Company o |
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Emerging growth company x |
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. o
CALCULATION OF REGISTRATION FEE
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Title of securities |
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Amount to be |
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Proposed |
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Proposed |
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Amount of |
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Common Stock, par value $0.0001 per share |
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4,950,000 shares |
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$ |
9.73 |
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$ |
48,163,500 |
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$ |
5,583 |
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(1) Represents shares of common stock, par value $0.0001 per share (the “Common Stock”), Daseke, Inc. (the “Registrant”) reserved for issuance under the Daseke, Inc. 2017 Omnibus Incentive Plan (the “Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an indeterminate number of additional shares of Common Stock issuable with respect to the shares being registered hereunder by reason of any stock dividend, stock split, recapitalization or other similar transaction. No additional registration fee is included for these shares.
(2) The proposed maximum aggregate offering price of the Common Stock was calculated based upon the market value for shares of the Common Stock in accordance with Rule 457(c) and (h) under the Securities Act using the average of the high and low sales prices per share reported by The Nasdaq Capital Market on May 23, 2017.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Registrant will send or give to all participants in the Plan document(s) containing the information required by Part I of Form S-8, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) under the Securities Act. In accordance with Rule 428, the Registrant has not filed such document(s) with the Commission, but such documents (along with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) shall constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, the Registrant hereby incorporates by reference into this Registration Statement the following documents:
(a) The Definitive Proxy Statement on Schedule 14A, filed by Hennessy Capital Acquisition Corp. II (renamed Daseke, Inc.) with the Commission on February 6, 2017;
(b) The Annual Report on Form 10-K for the fiscal year ending December 31, 2016, filed by Hennessy Capital Acquisition Corp. II (renamed Daseke, Inc.) with the Commission on February 24, 2017;
(c) The Quarterly Report on Form 10-Q for the quarter ending March 31, 2017, filed by the Registrant with the Commission on May 10, 2017;
(d) The Current Report on Form 8-K filed by Hennessy Capital Acquisition Corp. II (renamed Daseke, Inc.) with the Commission on January 30, 2017;
(e) The Current Reports on Form 8-K filed by the Registrant on February 27, 2017, March 3, 2017 and May 5, 2017, and the Registrant’s Current Reports on Form 8-K/A filed with the Commission on March 16, 2017 and May 4, 2017;
(f) The description of the Registrant’s securities contained in the Registration Statement on Form 8-A, filed by Hennessy Capital Acquisition Corp. II (renamed Daseke, Inc.) with the Commission on July 21, 2015, including any amendments or reports filed for the purpose of updating such description; and
(g) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the documents referred to in (b) above.
Except to the extent that information is deemed furnished and not filed pursuant to securities laws and regulations, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and all reports on Form 8-K subsequent to the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall also be deemed to be incorporated by reference herein and to be a part hereof from the dates of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”) permits a corporation, under specified circumstances, to indemnify its directors, officers, employees and agents against expenses (including attorneys’ fees) and other liabilities actually and reasonably incurred by them as a result of any suit (other than a suit brought by or in the right of the corporation) brought against them in their capacity as such, if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, if they had no reasonable cause to believe their conduct was unlawful. Section 145 of the DGCL also provides that directors, officers, employees and agents may also be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by them in connection with a suit brought by or in the right of the corporation if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made, unless otherwise determined by the court, if such person was adjudged liable to the corporation. The DGCL provides that the indemnification described above shall not be deemed exclusive of other indemnification that may be granted by a corporation pursuant to its by-laws, disinterested directors’ vote, stockholders’ vote, agreement or otherwise.
The DGCL also provides corporations with the power 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 in a similar capacity for 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 or her status, whether or not the corporation would have the power to indemnify him or her against such liability as described above.
The Registrant’s certificate of incorporation and bylaws provide for indemnification of our directors and officers to the maximum extent permitted by the DGCL. In addition, the Registrant has entered into indemnification agreements with each of its current directors and executive officers. Each indemnification agreement provides that we will indemnify the director or executive officer to the fullest extent permitted by law if the director or officer was, is made, or is threatened to be made a party to any proceeding, other than a proceeding by or in the right of the Registrant, for all expenses, judgments, liabilities, fines, penalties and amounts paid in settlement actually and reasonably incurred by the director or officer in connection with such proceeding, or, for all expenses actually and reasonably incurred by the director or officer in connection with any proceeding by or in the right of the Registrant, in both cases, so long as the director or officer acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Registrant, and, in the case of a criminal proceeding, in addition, had no reason to believe his or her conduct was unlawful. The indemnification agreement also provides for, among other things, (i) partial indemnification of all expenses actually and reasonably incurred by the director or officer in the event that he or she was successful as to less than all of the claims in connection with any proceeding; (ii) that, in respect of any proceeding in which the Registrant is jointly liable with the director or officer, to the fullest extent permitted by law, the Registrant waives and relinquishes any right of contribution it may have against the director of officer; (iii) proportionate contribution by the Registrant of all expenses actually incurred and paid or payable in the event the director or officer shall elect or be required to pay all or any portion of a judgment or settlement in any proceeding in which the Registrant is jointly liable; and (iv) to the fullest extent permitted by law, that the Registrant will advance the expenses incurred by or on behalf of the director or officer in connection with any eligible proceeding, provided that the director or officer undertakes to repay the amounts advanced to the extent it is ultimately determined that the director or officer is not entitled to indemnification by the Registrant. The Registrant also intends to enter into indemnification agreements with its future directors and executive officers.
The Registrant has purchased directors’ and officers’ liability insurance. The Registrant believes that this insurance is necessary to attract and retain qualified directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits to this Registration Statement are listed in the Exhibit Index that immediately precedes such exhibits and is incorporated herein by reference.
Item 9. 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) 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) if, in the aggregate, the changes in volume and price represent no more than a 20 percent 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) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(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.
(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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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 Commission 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Addison, State of Texas on May 31, 2017.
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DASEKE, INC. | |
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By: |
/s/ R. Scott Wheeler |
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Name: R. Scott Wheeler |
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Title: Executive Vice President and |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints R. Scott Wheeler and Angie J. Moss, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully and to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
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Dated: May 31, 2017 |
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/s/ Don Daseke |
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Don Daseke |
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Dated: May 31, 2017 |
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/s/ R. Scott Wheeler |
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R. Scott Wheeler |
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Dated: May 31, 2017 |
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/s/ Angie J. Moss |
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Angie J. Moss |
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Dated: May 31, 2017 |
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Daniel J. Hennessy |
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Dated: May 31, 2017 |
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/s/ Mark Sinclair |
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Mark Sinclair, Director |
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Dated: May 31, 2017 |
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Brian Bonner, Director |
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Dated: May 31, 2017 |
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Ronald J. Gafford, Director |
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Dated: May 31, 2017 |
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/s/ Jonathan Shepko |
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Jonathan Shepko, Director |
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Dated: May 31, 2017 |
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Kevin M. Charlton, Director |
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Number |
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Description |
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4.1 |
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Second Amended and Restated Certificate of Incorporation of Hennessy Capital Acquisition Corp. II (renamed Daseke, Inc.) (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K filed by the Registrant on March 3, 2017). |
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4.2 |
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Bylaws of the Registrant (incorporated by reference to Exhibit 3.3 to the Registration Statement of Form S-1 filed by the Registrant on June 22, 2015). |
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4.3* |
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Daseke, Inc. 2017 Omnibus Incentive Plan (As Amended and Restated on May 26, 2017, Effective as of February 27, 2017). |
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4.4* |
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Daseke, Inc. 2017 Stock Ownership Program for Employees. |
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4.5* |
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Daseke, Inc. 2017 Management Stock Ownership Program For Selected Management. |
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4.6* |
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Daseke, Inc. 2017 Stock Ownership Program for Truck Driver Employees. |
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4.7 |
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Form of Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.7 to the Current Report on Form 8-K filed by the Registrant on March 3, 2017). |
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4.8 |
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Form of Non-Qualified Stock Option Award Agreement (incorporated by reference to Exhibit 10.8 to the Current Report on Form 8-K filed by the Registrant on March 3, 2017). |
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4.9 |
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Form of Non-Qualified Stock Option Award Agreement for Non-Employee Directors (incorporated by reference to Exhibit 10.9 to the Current Report on Form 8-K filed by the Registrant on March 3, 2017). |
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4.10* |
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Form of Restricted Stock Unit Award Agreement (Canadian Employee). |
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4.11* |
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Form of Non-Qualified Stock Option Award Agreement (Canadian Employee). |
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5.1* |
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Opinion of Vinson & Elkins L.L.P. as to the legality of the securities being registered. |
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23.1* |
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Consent of Grant Thornton LLP. |
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23.2* |
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Consent of WithumSmith+Brown, PC. |
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23.3* |
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Consent of Vinson & Elkins LLP (included in Exhibit 5.1). |
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24.1* |
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Power of Attorney (included as part of the signature pages to the Registration Statement). |
| This ‘S-8’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed on / Effective on: | 5/31/17 | 8-K | ||
| 5/26/17 | S-3 | |||
| 5/23/17 | 8-K | |||
| 5/10/17 | 10-Q, 8-K | |||
| 5/5/17 | 8-K | |||
| 5/4/17 | 8-K/A | |||
| 3/31/17 | 10-Q | |||
| 3/16/17 | 8-K/A | |||
| 3/3/17 | 3, 4, 8-K | |||
| 2/27/17 | 25-NSE, 3, 4, 8-K, 8-K/A | |||
| 2/24/17 | 10-K, 8-K | |||
| 2/6/17 | DEFM14A | |||
| 1/30/17 | 8-K, DEFA14A, UPLOAD | |||
| 12/31/16 | 10-K | |||
| 7/21/15 | 8-A12B | |||
| 6/22/15 | CORRESP, DRS, S-1 | |||
| List all Filings | ||||