Exhibit 10.1
SHARE REPURCHASE AGREEMENT
This SHARE REPURCHASE AGREEMENT (this “Agreement”) is made and entered into as of November 10, 2022, by and between Daseke, Inc., a Delaware corporation (the “Company”), on the one hand, and Don R. Daseke, an individual (“Mr. Daseke”), Barbara Daseke, an individual (“Mrs. Daseke”), and The Walden Group, Inc., a Delaware corporation (“Walden Group” and, together with Mr. Daseke and Mrs. Daseke, “Sellers”), on the other hand. The Company and Sellers are referred to herein collectively as the “Parties” and each, individually, as a “Party.”
WHEREAS, as of the date hereof, Sellers are the record and beneficial owners (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of 18,108,665 shares of common stock, par value $0.0001 per share, of the Company (the “Common Stock”) in the aggregate (inclusive of 99,940 shares of Common Stock issuable to Mr. Daseke upon the exercise of a stock option (the “Stock Option”) and 76,000 shares of Common Stock held of record by Walden Management Co. Pension (the “Walden Pension Shares”), an entity of which Mr. Daseke serves as the sole trustee);
WHEREAS, Sellers desire to sell to the Company, and the Company desires to repurchase from Sellers, 17,932,725 shares of Common Stock (the “Subject Shares”) on the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, Mr. Daseke, Walden Group and the Company desire to terminate the Board Agreement, dated as of December 22, 2020 (the “Board Agreement”), by and among the Company, Mr. Daseke and Walden Group, effective upon the closing of the transactions contemplated by this Agreement (the “Closing”).
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, do hereby agree as follows:
Purchase and Sale
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Closing
Representations and Warranties of SelleRS
Sellers hereby represent and warrant to the Company, as of the date hereof and as of the Closing Date, as follows:
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Representations and Warranties of the COMPANY
The Company hereby represents and warrants to Sellers, as of the date hereof and as of the Closing Date, as follows:
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Covenants
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Conditions to Closing
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Miscellaneous
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| if to the Company: |
| Daseke, Inc. 15455 Dallas Parkway, Suite 550 Addison, Texas 75001 Attn: General Counsel |
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| if to Sellers: |
| Don R. Daseke 7901 Windrose Avenue, Unit 1504 Plano, Texas 75024 |
Notices will be deemed to have been received on the date of receipt (a) if delivered by hand or nationally recognized overnight courier service or (b) upon receipt of an appropriate confirmation by the recipient when so delivered by email.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
THE COMPANY: | |
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DASEKE, INC. | |
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By: | /s/ Jonathan Shepko |
Name: | Jonathan Shepko |
Title: | Chief Executive Officer |
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SELLERS: | |
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DON R. DASEKE | |
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/s/ Don R. Daseke | |
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BARBARA DASEKE | |
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/s/ Barbara Daseke | |
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THE WALDEN GROUP, INC. | |
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By: | /s/ Don R. Daseke |
Name: | Don R. Daseke |
Title: | President & Sole Director |
Signature page to Share Repurcahse Agreement
Exhibit a
Certificate of Designations
See attached.
DASEKE, INC.
CERTIFICATE OF DESIGNATIONS
OF
PREFERENCES, RIGHTS AND LIMITATIONS
OF
SERIES B-1 PERPETUAL REDEEMABLE PREFERRED STOCK
AND
SERIES B-2 PERPETUAL REDEEMABLE PREFERRED STOCK
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Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
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Daseke, Inc., a Delaware corporation (the “Corporation”), does hereby certify that the Board of Directors of the Corporation (the “Board”) duly approved and adopted the following resolution on November 8, 2022:
WHEREAS, on the terms and subject to the conditions set forth in the Share Repurchase Agreement, dated as of November [●], 2022, by and among the Corporation and the investors party thereto (the “Investors”), the Investors agreed to, among other things, exchange 11,266,058 shares of common stock, par value $0.0001 per share, of the Corporation for 67,597 shares of Preferred Stock (as defined below), with an aggregate initial liquidation preference of $67,597,000.
RESOLVED, that, pursuant to the authority vested in the Board by the Corporation’s second amended and restated certificate of incorporation (as further amended or otherwise modified from time to time, the “Certificate of Incorporation”), the Board does hereby create, authorize and provide for the issuance, out of the authorized but unissued shares of the preferred stock, par value $0.0001 per share, of the Corporation, of (i) 20,000 shares of a new series of Preferred Stock with the designation set forth in clause (i) of Section 1 below and (ii) 47,597 shares of a new series of Preferred Stock with the designation set forth in clause (ii) of Section 1 below, and there is hereby stated and fixed the number of shares constituting such series and the powers, preferences and rights, and qualifications, limitations and restrictions, of such series as follows:
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If the notice of redemption shall have been so given and if prior to the date of redemption specified in such notice all funds necessary to pay the aggregate Redemption Price for such redemption shall have been irrevocably deposited in trust, for the account of the Holders of the shares of Preferred Stock to be redeemed, with a bank, trustee or trust company named in such notice doing business in New York, New York, and having capital and surplus of at least $500,000,000, then, without awaiting the redemption date, all shares of Preferred Stock with respect to which such notice shall have been so given and such deposit shall have been so made thereupon shall, notwithstanding that any certificate for shares of Preferred Stock (if such shares are certificated) shall not have been surrendered for cancellation, be deemed no longer to be outstanding, and all rights with respect to such shares of Preferred Stock forthwith upon such deposit in trust shall cease and terminate, except for the right of the Holders thereof on or after the redemption date to receive out of such deposit the Redemption Price, without interest. If the Holders of any shares of Preferred Stock which have been called for redemption shall not within two (2) years (or any longer period required by law) after the applicable redemption date claim any amount so deposited in trust for the redemption of such shares, then such bank or trust company shall, if permitted by applicable law, pay over to the Corporation any such unclaimed amount so deposited with it and thereupon shall be relieved of all responsibility in respect thereof; and thereafter the Holders of such shares shall, subject to applicable unclaimed property laws, look only to the Corporation for payment of the Redemption Price for such shares, without interest. Upon surrender, in accordance with such notice, of the certificates for any shares so redeemed (if such shares are certificated), the Redemption Price shall be paid in cash by wire transfer of immediately available funds to an account or accounts designated by such Holder of Preferred Stock in writing in advance. In the event that less than all of the shares of Preferred Stock represented by any certificate are redeemed, a new certificate representing the unredeemed shares shall be promptly issued to the Holder thereof without cost to such Holder (if such shares are certificated).
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Notwithstanding the foregoing, a transaction shall not be deemed to involve a Change of Control solely as a result of the Corporation becoming a direct or indirect wholly owned subsidiary of a holding company if (A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Corporation immediately prior to that transaction (and such holders of the Voting Stock of the Corporation immediately prior to such transaction would not have otherwise caused a Change of Control) or (b) immediately following that transaction no person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company. Notwithstanding the preceding or any provision of Section 13d-3 of the Exchange Act, (i) a Person or group shall not be deemed to beneficially own Voting Stock subject to a stock
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or asset purchase agreement, merger agreement, option agreement, warrant agreement or similar agreement (or voting or option or similar agreement related thereto) until the consummation of the acquisition of the Voting Stock in connection with the transactions contemplated by such agreement, (ii) a Person or group will not be deemed to beneficially own the Voting Stock of another Person as a result of its ownership of Voting Stock or other securities of such other Person’s parent entity (or related contractual rights) unless it owns 50% or more of the total voting power of the Voting Stock entitled to vote for the election of directors of such parent entity having a majority of the aggregate votes on the board of directors (or similar body) of such parent entity and (iii) the right to acquire Voting Stock (so long as such Person does not have the right to direct the voting of the Voting Stock subject to such right) or any veto power in connection with the acquisition or disposition of Voting Stock will not cause a party to be a beneficial owner.
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THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND WITHOUT A VIEW TO DISTRIBUTION AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER STATE SECURITIES LAWS. NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION THEREIN MAY BE MADE EXCEPT (A) IN COMPLIANCE WITH THE PROVISIONS OF THE CERTIFICATE OF DESIGNATIONS AND (B)(1) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS AND, IN THE CASE OF CLAUSE (B)(2), PROVIDED THAT THE CORPORATION, IF IT SO REQUESTS, RECEIVES AN OPINION OF COUNSEL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE CORPORATION TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. ANY TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION THEREIN IS SUBJECT TO THE TERMS AND CONDITIONS OF THE CERTIFICATE OF DESIGNATIONS RELATING TO THIS SECURITY FILED BY THE CORPORATION ON [●], 2022 (AS AMENDED, AMENDED AND RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME).
If any shares of Preferred Stock are not represented by certificates, an appropriate notation shall be made in book entry in the share registry with respect to such shares to make appropriate reference to such restrictions.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be executed by a duly authorized officer of the Corporation as of this [●]th day of [●], 2022.
DASEKE, INC.
By: |
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| Name: [●] |
| Title: [●] |
[Signature Page to Certificate of Designations]
Exhibit B
Cash Consideration
Seller and # of Shares of Common Stock to be Sold to the Company |
| $ to be Received from the Company | ||
Don R. Daseke - 1,561,112 shares |
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| $ | 9,366,672.00 |
Barbara Daseke - 34,299 shares |
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| $ | 205,794.00 |
The Walden Group, Inc. - 5,071,256 shares |
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| $ | 30,427,534.00 |
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Total - 6,666,667 shares |
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| $ | 40,000,000.00 |
Stock Consideration
Name of Person to be Issued Preferred Stock |
| Series and Number of Shares |
The Walden Group, Inc. |
| Series B-1 Preferred Stock - 20,000 shares |
The Walden Group, Inc. |
| Series B-2 Preferred Stock - 47,597 shares |
Exhibit C
Standstill Restrictions