Item 1.01. Entry into a Material Definitive Agreement.
Lyons Agreement
On December 23, 2020, Daseke, Inc. (the "Company") entered into a board
representation agreement (the "Lyons Agreement") with Lyons Capital, LLC, The
Lyons Community Property Trust, dated June 15, 1979 and Phillip N. Lyons
(collectively with their respective affiliates, the "Lyons Investors") and Grant
Garbers. The Lyons Investors beneficially own approximately 5% of the Company's
common stock in the aggregate as of the date of the Lyons Agreement.
Pursuant to the Lyons Agreement, among other things, (i) Kevin M. Charlton will
resign from the Company's Board of Directors (the "Board"), effective January 1,
2021; (ii) the Board will appoint Mr. Garbers (Mr. Garbers or any replacement
representative mutually agreed upon by the Company and the Lyons Investors
pursuant to the Lyons Agreement, the "Investor Representative") to the Board and
to the Corporate Governance and Nominating Committee of the Board (the
"Corporate Governance and Nominating Committee"), in each case to fill the
vacancy resulting from Mr. Charlton's resignation, effective January 1, 2021;
(iii) the Board will not nominate Daniel J. Hennessy for re-election at the
Company's 2021 annual meeting of stockholders (the "2021 Annual Meeting"); and
(iv) the Board will elect Charles F. Serianni as Chairman of the Board promptly
following the 2021 Annual Meeting if Mr. Serianni is re-elected to the Board at
the 2021 Annual Meeting. Also pursuant to the Lyons Agreement, prior to the
Lyons Termination Date (as defined below), the Company will, with respect to any
annual meeting of the Company's stockholders (an "Annual Meeting"), include the
Investor Representative in its proxy materials as a director nominee proposed by
the Board, recommend the Investor Representative's election to the Company's
stockholders and solicit proxies in favor of the Investor Representative's
election.
In addition, the Lyons Investors have agreed, prior to the Lyons Termination
Date, to vote all of their shares of the Company's common stock at any Annual
Meeting or any special meeting of the Company's stockholders or any action by
written consent of the Company's stockholders in lieu thereof, and any
adjournment, postponement, rescheduling or continuation thereof (any of the
foregoing, a "Stockholder Meeting"), in accordance with the Board's
recommendations with respect to (i) any proposal submitted to the Company's
stockholders that relates to the election, removal or replacement of directors
and (ii) any other proposal submitted to the Company's stockholders if the
Board's recommendation has been made by the requisite number of directors as set
forth in the Lyons Agreement and the proposal does not relate to any
Extraordinary Transaction (as defined in the Lyons Agreement).
The Lyons Investors have agreed to certain standstill restrictions that will
remain in place until the Lyons Termination Date, including, among other things,
agreeing not to (i) make any acquisition that would result in owning, in the
aggregate, 10% or more of the then-outstanding shares of the Company's common
stock; (ii) sell or otherwise transfer their shares of the Company's common
stock, except in open market transactions or to charitable or non-profit
organizations or to family members, provided that such organizations or family
members have executed a joinder to the Lyons Agreement; (iii) nominate or
recommend for nomination any person for election to the Board; (iv) solicit
proxies regarding the election or removal of directors; (v) submit any proposal
for consideration at, or bring any other business before, a Stockholder Meeting;
(vi) form, join or participate in any group with respect to any voting
securities of the Company; (vii) initiate or participate in any Extraordinary
Transaction; or (viii) effect, participate in, or publicly offer or propose to
effect or participate in, certain material transactions, including any material
acquisition of the Company's assets or businesses, in each case, without the
Board's prior approval.
The Lyons Agreement contains a mutual non-disparagement provision applicable
until the Lyons Termination Date. In addition, the Company and the Lyons
Investors agreed that, until the Lyons Termination Date, they will not initiate
any legal proceeding against the other party, subject to certain customary
exceptions. For securities law purposes and as a condition to the Investor
Representative's appointment to the Board, the parties also agreed to enter into
a standalone confidentiality agreement.
With certain exceptions relating to breaches of the Lyons Agreement, the Lyons
Agreement terminates after the Company or the Lyons Investors deliver a notice
of termination at any time after the date of the second Annual Meeting following
the date of the Lyons Agreement (the "Earliest Lyons Termination Date"), subject
to the terminating party providing at least 30 days' advance notice (the
effective date of such termination, the "Lyons Termination Date"). However, if
the Company notifies the Lyons Investors and the Investor Representative before
the Earliest Lyons Termination Date that the Board will re-nominate the Investor
Representative at the Company's next Annual Meeting, then the Earliest Lyons
Termination Date would be automatically extended to the date of the Company's
next Annual Meeting. The Investor Representative has agreed to immediately
tender his resignation as a director of the Company, which the Board may accept
or reject in its sole discretion, upon the earliest of the following: (i) the
Lyons Termination Date; (ii) the sale or other transfer by the Lyons Investors
of the Company's common stock that results in the Lyons Investors' net long
ownership of the Company's common stock falling below 80% of their ownership net
long aggregate ownership of the Company's common stock as of the date of the
Lyons Agreement, with certain adjustments and exceptions as set forth in the
Lyons Agreement; and (iii) the Lyons Investors' failure to cure a material
breach of the Lyons Agreement pursuant to the Lyons Agreement.
The foregoing description of the Lyons Agreements is a summary and is qualified
in its entirety by reference to the Lyons Agreements, a copy of which is filed
herewith as Exhibit 10.1 and is incorporated herein by reference.
Don R. Daseke Agreement
On December 23, 2020, the Company entered into a board agreement (the "Don R.
Daseke Agreement") with The Walden Group, Inc. and Don R. Daseke (collectively
with their respective affiliates, the "Don R. Daseke Investors"). Mr. Daseke
currently serves as a member of the Board, and the Don R. Daseke Investors
beneficially own approximately 28% of the Company's common stock in the
aggregate as of the date of the Don R. Daseke Agreement. Pursuant to the Don R.
Daseke Agreement, prior to the Don R. Daseke Termination Date (as defined
below), the Company will, with respect to any Annual Meeting, include Mr. Daseke
in its proxy materials as a director nominee proposed by the Board, recommend
his election to the Company's stockholders and solicit proxies in favor of his
election.
In addition, the Don R. Daseke Investors have agreed, prior to the Don R. Daseke
. . .
Item 2.02. Results of Operations and Financial Condition.
The following information is being furnished pursuant to Item 2.02 of Form 8-K.
This information shall not be deemed "filed" for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended, or otherwise subject to the
liabilities of that section, nor shall it be deemed incorporated by reference in
any filing under the Securities Act of 1933, as amended, regardless of any
general incorporation language in such filing, except as shall be expressly set
forth by specific reference in such filing.
On January 5, 2021, the Company issued press releases announcing that, based on
preliminary results, it expects that its fourth quarter 2020 revenue and
Adjusted EBITDA to be approximately in line with analyst consensus. These press
releases, which also announce the other matters disclosed in this Current Report
on Form 8-K, are furnished herewith as Exhibit 99.1 and Exhibit 99.2 and are
incorporated by reference into this Item 2.02.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Director Resignation and Appointment
On December 30, 2020, pursuant to the Lyons Agreement, Mr. Charlton tendered his
resignation as a member of the Board, effective January 1, 2021, and the Board
appointed Mr. Garbers to the Board and the Corporate Governance and Nominating
Committee, in each case, effective as of January 1, 2021, to fill the vacancy
that will result from Mr. Charlton's resignation.
Mr. Garbers will receive compensation for service on the Board and the Corporate
Governance and Nominating Committee in a manner consistent with the Company's
non-employee director compensation policies and programs in effect from time to
time. Currently, the Company's non-employee directors receive an annual cash
retainer of $75,000, which is paid in equal installments quarterly. Also in
connection with his appointment to the Board, Mr. Garbers will enter into an
indemnification agreement with the Company in the same form that the Company has
entered into with its other directors.
There are no current or proposed transactions in which Mr. Garbers has or will
have a direct or indirect material interest and in which the Company is or will
be a participant that require disclosure pursuant to Item 404(a) of Regulation
S-K. In addition, there are no arrangements or understandings between Mr.
Garbers and any other person pursuant to which he was appointed as a director,
other than the Lyons Agreement, a summary of which is included in Item 1.01
above and is incorporated by reference into this Item 5.02.
Chief Executive Officer Retirement
On December 30, 2020, Christopher R. Easter notified the Company of his
retirement as Chief Executive Officer and director of the Company, effective
December 31, 2020. In connection with his retirement, Mr. Easter and the Company
have entered into a separation agreement, effective as of December 30, 2020 (the
"Separation Agreement"). Mr. Easter may revoke the Separation Agreement within a
period of seven days after the execution date, after which time if not revoked,
the Separation Agreement will become effective.
The Separation Agreement provides, among other things, that Mr. Easter's
separation from employment with the Company is effective as of December 31, 2020
(the "Separation Date") and that Mr. Easter also resigned from his other
positions with the Company and its subsidiaries on the Separation Date. In
addition, the Separation Agreement provides that, subject to the terms and
conditions set forth therein, Mr. Easter will be entitled to receive, among
other things, (i) his regular annual base salary through the Separation Date;
(ii) an annual bonus for 2020 in the gross amount of $1.4 million; and (iii) in
exchange for Mr. Easter's waiver of any claim in relation to the unvested
portion of the Outstanding Equity Awards (as defined therein), four equal
payments of $475,000 on each of June 30, 2021, December 31, 2021, June 30, 2022,
and December 31, 2022.
Pursuant to the Separation Agreement, Mr. Easter has agreed to certain
standstill restrictions that will remain in place until December 31, 2022,
including, among other things, agreeing not to (i) acquire any voting securities
of the Company; (ii) nominate or recommend for nomination any person for
election to the Board; (iii) solicit proxies regarding the election or removal
of directors; (iv) submit any proposal for consideration at, or bring any other
business before, any Stockholder Meeting; (v) form, join or participate in any
group with respect to any voting securities of the Company, in each case,
without the Company's prior approval. Additionally, Mr. Easter has agreed that,
for a period of six years from the date of the Separation Agreement, he shall
decline any nomination, election or appointment to serve on the Board.
The Separation Agreement includes a customary release of claims by Mr. Easter
(on behalf of himself and his agents, spouse, heirs, executors, successors and
assigns) in favor of the Company and its affiliates, and Mr. Easter's
eligibility and entitlement, if any, to the severance payments and any other
payments and benefits described therein is subject to the non-revocation of such
release of claims. In addition, the Separation Agreement provides that Mr.
Easter shall remain subject to confidentiality and certain other restrictive
covenant obligations set forth in the Amended and Restated Employment Agreement
between the Company and Mr. Easter, effective as of April 20, 2020 (the
"Employment Agreement"), following the Separation Date. The Separation Agreement
also includes a release of claims by the Company (on behalf of itself and its
subsidiaries, successors and assigns) in favor of Mr. Easter, his agents,
spouse, heirs, executors, successors and assigns related to or arising from Mr.
Easter's employment with the Company, the cessation thereof and the Employment
Agreement, based on facts known by the Board, or facts that the Board should
have known upon reasonable inquiry, as of the Separation Date. The Separation
Agreement also contains a mutual non-disparagement provision.
The foregoing description of the Separation Agreement is a summary and is
qualified in its entirety by reference to the Separation Agreement, a copy of
which is filed herewith as Exhibit 10.3 and is incorporated herein by reference.
Interim Chief Executive Officer Appointment
On December 30, 2020, the Board appointed Jonathan Shepko as Interim Chief
Executive Officer, effective January 1, 2021. Mr. Shepko currently serves the
Company as a member of the Board, and biographical information for him can be
found in the Company's Definitive Proxy Statement on Schedule 14A, filed with
the Securities and Exchange Commission on May 4, 2020 , and is incorporated
herein by reference. There are no family relationships between Mr. Shepko and
any director or executive officer of the Company that are required to be
disclosed pursuant to Item 401(d) of Regulation S-K, and there are no current or
proposed transactions in which Mr. Shepko has or will have a direct or indirect
material interest and in which the Company is or will be a participant that
require disclosure pursuant to Item 404(a) of Regulation S-K.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
10.1* Board Representation Agreement by and among Daseke, Inc., Lyons
Capital, LLC, The Lyons Community Property Trust, dated June 15, 1979,
Phillip N. Lyons and Grant Garbers.
10.2 Board Agreement by and among Daseke, Inc., The Walden Group, Inc. and
Don R. Daseke.
10.3* Separation Agreement by and among Christopher R. Easter and Daseke,
Inc.
99.1** Press Release dated January 5, 2021.
99.2** Press Release dated January 5, 2021.
104 Cover Page Interactive Data File (formatted as inline XBRL and contained
in Exhibit 101).
* Certain schedules and similar attachments have been omitted. The Company agrees
to furnish a supplemental copy of any omitted schedule or attachment to the
Securities and Exchange Commission upon request.
** Furnished herewith.
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DASEKE, INC. 
