HENNESSY CAPITAL ACQUISITION CORP. II (NASDAQ:HCAC) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01 Entry Into A Material Definitive Agreement.
Merger Agreement
On December 22, 2016, Hennessy Capital Acquisition Corp. II
(Hennessy Capital or the Company) entered into an Agreement and
Plan of Merger (the Merger Agreement) with Daseke, Inc. (Daseke),
HCAC Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company (Merger Sub), and Don R. Daseke, solely
in his capacity as the Stockholder Representative thereunder.
The Merger Agreement provides for the acquisition by the Company
of all of the outstanding capital stock of Daseke, through the
merger of Merger Sub with and into Daseke, with Daseke surviving
such merger as a direct wholly-owned subsidiary of the Company
(the Business Combination).
Daseke may determine prior to the closing of the Business
Combination, in accordance with the terms of the Merger
Agreement, that, immediately after the effectiveness of the
Business Combination, the surviving company shall be merged (the
LLC Sub Merger) with and into a wholly-owned limited liability
company subsidiary of Hennessy Capital (LLC Sub), with LLC Sub
continuing as the surviving entity in the LLC Sub Merger as a
direct wholly-owned subsidiary of Hennessy Capital. If Daseke
makes this forward merger election, then LLC Sub shall be the
surviving company following the Business Combination.
Total Merger Consideration
Upon consummation of the Business Combination, each share of
Daseke common stock issued and outstanding immediately prior to
such consummation (including shares of Daseke common stock issued
upon conversion, on a one-for-one basis, of all outstanding
Daseke preferred stock immediately prior to such consummation)
will be cancelled and automatically converted into the right to
receive a pro rata share of the Closing Merger Consideration (as
defined below) and the Earn-Out Consideration (as defined below)
(if any), each of which is payable entirely in newly issued
shares of Hennessy Capital common stock.
Closing Merger Consideration. to the Merger Agreement,
the aggregate merger consideration payable upon the closing of
the Business Combination (the Closing Merger Consideration) is
(i) $626 million, subject to certain adjustments set forth in the
Merger Agreement, including an increase for the positive amount
of Daseke cash and a decrease for the aggregate amount of Daseke
indebtedness, unpaid income taxes, unpaid Daseke transaction
expenses and the Main Street and Prudential Consideration (as
defined below), in each case as of the end of the day immediately
preceding the closing date plus (ii) the number of shares equal
to (a) 2,274,988 less (b) 50% of the Utilization Fee Shares (as
defined below). The Closing Merger Consideration is payable
entirely in stock, consisting of newly issued shares of Hennessy
Capital common stock at a value of $10.00 per share.
Earn-Out Consideration. The Merger Agreement provides
that, in addition to the Closing Merger Consideration, Daseke
stockholders will be entitled to receive additional contingent
consideration (the Earn-Out Consideration) of up to an additional
15.0 million shares of Hennessy Capital common stock (with up to
5.0 million shares payable annually with respect to 2017, 2018
and 2019 performance). The full Earn-Out Consideration is only
payable if (i) the annualized Adjusted EBITDA (giving effect to
acquisitions and as defined in the Merger Agreement) of Daseke
and its subsidiaries for the fiscal years ending December 31,
2017, 2018 and 2019 is at least $140 million, $170 million and
$200 million, respectively, and (ii) the closing share price of
Hennessy Capital common stock is at least $12.00, $14.00 and
$16.00 for any 20 trading days within any consecutive 30-trading
day period during the fiscal years ending December 31, 2017, 2018
and 2019, respectively. For each year, the 5.0 million earn-out
shares shall be prorated to the extent the annualized Adjusted
EBITDA (giving effect to acquisitions) of Daseke and its
subsidiaries exceeds 90%, but represents less than 100%, of the
applicable earn-out target.
Representations, Warranties and Covenants
Under the Merger Agreement, Daseke, on the one hand, and the
Company, on the other hand, each made customary representations,
warranties and covenants for transactions of this nature as of
the date of such agreement or other specific dates. The
representations and warranties made by Daseke and Hennessy
Capital to each other in the Merger Agreement will not survive
the consummation of the Business Combination.
The assertions embodied in those representations, warranties and
covenants were made for purposes of the Merger Agreement and are
subject to important qualifications and limitations agreed to by
the parties in connection with negotiating such agreement. The
representations, warranties and covenants in the Merger Agreement
are also modified in important part by the disclosure schedules
and annexes attached thereto, which are not filed publicly and
whichmay be subject to contractual standards of materiality or
material adverse effect applicable to the contracting parties
that differ from what may be viewed as material to investors. The
representations and warranties in the Merger Agreement and the
items listed in the disclosure schedules were used for the
purpose of allocating risk among the parties rather than
establishing matters as facts. The Company does not believe that
the disclosure schedules contain information that is material to
an investment decision. Investors are not third-party
beneficiaries under the Merger Agreement and should not rely on
the representations, warranties and covenants or any descriptions
thereof as characterizations of the actual state of facts or
condition of the parties thereto or any of their respective
subsidiaries or affiliates.
Shelf Registration Rights
to the Merger Agreement, Hennessy Capital has agreed to file,
after the closing of the Business Combination, a resale shelf
registration statement on Form S-3 (or if then ineligible to use
such form, then any other available form of registration
statement) to register for resale under the Securities Act of
1933, as amended (the Securities Act), the shares of the Companys
common stock issued to Daseke common stockholders in connection
with the Business Combination. The Company has agreed to use
commercially reasonable efforts to cause such registration
statement to become effective no later than 180 days after the
closing of the Business Combination. The Company has agreed to
pay the reasonable fees and expenses of one legal counsel to
represent the interests of the Daseke stockholders in connection
with the Shelf Registration Statement. There are no penalties
associated with delays in registering such shares of the Companys
common stock under the Merger Agreement. The Merger Agreement
also provides that the Company will enter into an amended and
restated registration rights agreement with certain Daseke
stockholders, including Daseke preferred stockholders, and
certain additional parties. See Registration Rights Agreement
below.
Conditions to Consummation of the Business Combination
Consummation of the transactions contemplated by the Merger
Agreement is subject to the satisfaction or waiver of customary
conditions by the respective parties, including the approval of
the Merger Agreement and the Business Combination by the Companys
stockholders and the completion of the Redemption Offer (as
defined below). Other closing conditions include, among others:
(i) the applicable waiting periods, if any, under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 having
expired or terminated; (ii) the shares of Company common stock to
be issued in the Business Combination having been approved for
listing on The NASDAQ Capital Market, subject to official notice
of issuance; (iii) the approval and election, or appointment,
effective as of the closing of the Business Combination, to the
Companys board of directors of Don R. Daseke, Brian Bonner, Ron
Gafford, Mark Sinclair and R. Scott Wheeler; (iv) the Company
having at least $5,000,001 of net tangible assets (as determined
in accordance with Rule 3a51-1(g)(1) of the Securities Exchange
Act of 1934, as amended (the Exchange Act)) remaining after the
closing of the Redemption Offer;(v) the sale of $65.0 million of
the Companys Series A Convertible Preferred Stock (at a purchase
price of $100.00 per share) in a private placement (the Preferred
Financing)and the purchase of shares of the Companys common stock
to the Backstop Commitment (as defined below) (to the extent
utilized) each having been completed; (vi) Daseke having obtained
an opinion of counsel that the Business Combination, or, if
applicable, the Business Combination together with the LLC Sub
Merger, will qualify for the intended tax-free reorganization
treatment; (vii) Daseke being in compliance with the terms of the
Main Street and Prudential Agreement (as defined below); (viii) a
waiver by each Daseke stockholder that has a right of first
refusal with respect to any offer to purchase shares of Dasekes
capital stock that may apply as a result of the transactions
contemplated by the Merger Agreement, including the Business
Combination, of such right; (ix) the Debt Financing (as defined
below) having been funded to the Debt Financing Commitment (as
defined below); (x) no Material Adverse Effect (as defined in the
Merger Agreement) having occurred since December 22, 2016; (xi)
entry by the Company into the Registration Rights Agreement (see
Registration Rights Agreement below); and (xii) Dasekes directors
and executive officers and persons that beneficially own at least
1% of Dasekes common stock immediately prior to the consummation
of the Business Combination entering into a lock-up agreement
(see Lock-Up Agreements below).
Termination
The Merger Agreement may be terminated under certain customary
and limited circumstances at any time prior to closing, including
by either party if the transactions contemplated by the Merger
Agreement have not been completed by June 30, 2017; provided that
the party seeking to terminate shall not have breached in any
material respect its obligations thereunder in any manner that
has proximately caused the failure to consummate the Business
Combination. If the Merger Agreement is validly terminated, no
party thereto will have any liability or any further obligation
to any other party under the Merger Agreement, with certain
limited exceptions, including liability for any knowing or
intentional breach of the Merger Agreement.
A copy of the Merger Agreement is filed with this Current Report
on Form 8-K (this Report) as Exhibit 2.1 and is incorporated
herein by reference, and the foregoing description of the Merger
Agreement is qualified in its entirety by reference thereto.
Redemption Offer
to the Companys amended and restated certificate of incorporation
and in accordance with the terms of the Merger Agreement, the
Company will be providing its stockholders who hold shares
acquired in the Companys July 2015 initial public offering (the
IPO) with the opportunity to redeem, upon the closing of the
Business Combination, their shares of Company common stock for
cash equal to their pro rata share of the aggregate amount on
deposit as of two (2) business days prior to the consummation of
the Business Combination in the Companys trust account (which
holds the proceeds of the Companys IPO, less taxes payable or
amounts released to the Company for working capital) (the
Redemption Offer). For illustrative purposes, based on funds in
the trust account of approximately $199.7million on September 30,
2016 (approximately $0.1 million of which was withdrawn in
October 2016 for taxes and working capital purposes), the
estimated per share redemption price would have been
approximately $10.00.
Common Stock Backstop and Subscription
Agreement
On December 22, 2016, the Company entered into Backstop and
Subscription Agreements (each, a Backstop and Subscription
Agreement) with certain institutional accredited investors, to
which such investors have agreed to purchase up to $35.0 million
in shares of Hennessy Capital common stock (as and to the extent
requested by the Company) through one or more of (x) open market
or privately negotiated transactions with third parties
(including forward contracts), (y) a private placement with
consummation concurrent with that of the Business Combination at
a purchase price of $10.00 per share, or (z) a combination
thereof, in order to help ensure that the Company receives
sufficient funds from its trust account after redemptions to
(among other things) fund the Main Street and Prudential
Consideration (as defined below) (the Backstop Commitment). Each
investor of the Backstop Commitment has agreed to vote any
Hennessy Capital common stock that it owns, whether acquired to
the Backstop Commitment or otherwise, in favor of the Business
Combination and the other proposals set forth in the Companys
preliminary proxy statement filed on December 22, 2016 with the
Securities and Exchange Commission (the SEC) and related
definitive proxy statement, when available, relating to the
Redemption Offer and the Business Combination. Each investor of
the Backstop Commitment has also agreed not to transfer any
Hennessy Capital common stock that it acquires to the Backstop
Commitment until the earlier of (i) the closing of the Business
Combination or (ii) the public announcement by the Company of the
termination of the Merger Agreement. In consideration for the
Backstop Commitment, the investors of the Backstop Commitment
have received a cash commitment fee of $1,400,000 in the
aggregate and, upon closing of the Business Combination, such
investors will be entitled to receive, in the aggregate, up to
391,892 Utilization Fee Shares (which shares will be prorated to
the extent less than the full $35.0 million commitment amount is
utilized), consisting of newly issued shares of Hennessy Capital
common stock. Concurrently with such issuance of Utilization Fee
Shares, an identical number of shares of Hennessy Capital common
stock issued prior to the IPO (founder shares) will be forfeited
by the Companys sponsor, Hennessy Capital Partners II LLC (the
Sponsor), and cancelled. A form of the Backstop and Subscription
Agreement is filed with this Report as Exhibit 10.1 and is
incorporated herein by reference, and the foregoing description
of the Backstop and Subscription Agreement is qualified in its
entirety by reference thereto.
Preferred Stock Subscription Agreement
On December 22, 2016, the Company entered into subscription
agreements (each, a Preferred Subscription Agreement) with
certain institutional accredited investors, to which such
investors have agreed to acquire $65.0 million of the Companys
Series A Convertible Preferred Stock (at a purchase price of
$100.00 per share) in a private placement concurrently with the
consummation of the Business Combination. The terms, rights,
obligations and preferences of the Series A Convertible Preferred
Stock are set forth in the Certificate of Designations,
Preferences, Rights and Limitations of 7.625% Series A
Convertible Cumulative Preferred Stock of the Company, a form of
which is attached as Exhibit A to the Preferred Subscription
Agreement and will be filed with the proposed Second Amended and
Restated Certificate of Incorporation of the Company with the
Secretary of State of the State of Delaware upon the closing of
the Business Combination. A form of the Preferred Subscription
Agreement is filed with this Report as Exhibit 10.2 and is
incorporated herein by reference, and the foregoing description
of the Preferred Subscription Agreement is qualified in its
entirety by reference thereto.
Founder Voting and Support Agreement
On December 22, 2016, the Sponsor and each of the current
officers and current directors and an advisor of the Company, in
each case, that hold founder shares (collectively, the Initial
Hennessy Stockholders) entered into a Voting and Support
Agreement with Daseke (the Voting and Support Agreement). to the
Voting and Support Agreement, the Initial Hennessy Stockholders
have agreed, among other things, to vote all of the shares of the
Company common stock held by the Initial Hennessy Stockholders
(representing as of the date hereof approximately 20% of the
voting power of the Company) (i) in favor of the adoption of the
Merger Agreement and approval of the Business Combination and
other transactions contemplated by the Merger Agreement; (ii)
against any actions that would result in a breach by the Company
of any obligations or agreements contained in the Merger
Agreement; (iii) in favor of the proposals set forth in the
Companys preliminary proxy statement filed on December 22, 2016
with the SEC and related definitive proxy statement, when
available, relating to the Redemption Offer and the Business
Combination; and (iv) against alternative proposals or
transactions to the Business Combination.
The Voting and Support Agreement generally prohibits the Initial
Hennessy Stockholders from transferring, or permitting to exist
any liens on, their shares of the Companys common stock prior to
the termination of such agreement. The Voting and Support
Agreement will automatically terminate upon the first to occur of
(i)the mutual written consent of Daseke and the Initial Hennessy
Stockholders, (ii)the closing of the Business Combination or
(iii)the termination of the Merger Agreement in accordance with
its terms. A copy of the Voting and Support Agreement is filed
with this Report as Exhibit 10.3 and is incorporated herein by
reference, and the foregoing description of the Voting and
Support Agreement is qualified in its entirety by reference
thereto.
Main Street and Prudential Agreement
On December 22, 2016, the Company entered into a letter agreement
(the Main Street and Prudential Agreement) with Daseke; The
Walden Group, Inc., a Delaware corporation that is the largest
Daseke stockholder and is expected to be the largest stockholder
of the combined company following the Business Combination
(Walden Group); Main Street Capital II, LP, Main Street Mezzanine
Fund, LP and Main Street Capital Corporation, each of which is a
Daseke stockholder of record (collectively, Main Street); and
Prudential Capital Partners IV, L.P., Prudential Capital Partners
(Parallel Fund) IV, L.P. and Prudential Capital Partners
Management Fund IV, L.P., each of which is a Daseke stockholder
of record (collectively, Prudential). to the Main Street and
Prudential Agreement, Daseke, Walden Group, Main Street and
Prudential have agreed, subject to the conditions set forth
therein, to, among other things:
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waive any and all right and option to exercise the right of first refusal as provided in Section 1 of the Amended and Restated Investment Side Letter (the Investment Side Letter), dated October 2, 2014, by and among Daseke, Walden Group, Main Street and Prudential in connection with any transfer of Securities (as defined in the Investment Side Letter) deemed to have occurred to the Business Combination or the transactions contemplated by the Merger Agreement and the Main Street and Prudential Agreement; |
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terminate the Investment Side Letter and the other side letters between Daseke and Walden Group and Main Street and Prudential, in each case upon the satisfaction of the conditions set forth therein; and |
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subject to the terms and conditions set forth therein, waive any and all right and option of Main Street and Prudential to exercise the put option set forth in the Investment Side Letter as a result of the closing of the Business Combination and the payoff of the Original Notes and the Main Street Notes (each as defined in the Investment Side Letter). |
Main Street and Prudential have also agreed to consent to the
Business Combination.
Hennessy Capital and Daseke, in turn, have agreed, subject to the
conditions set forth in the Main Street and Prudential Agreement,
that:
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Hennessy Capital will purchase, immediately prior to closing of the Business Combination, all of the shares of Daseke common stock held by Main Street and Prudential for consideration in an aggregate amount equal to the greater of (i) $35.0 million and (ii) an amount equal to the product of (x) the total number of shares of Hennessy Capital common stock that Main Street and Prudential would have received in the aggregate in the Business Combination in exchange for their Daseke common stock had such shares of Daseke common stock not been repurchased by Hennessy Capital to the Main Street and Prudential Agreement, and (y) $10.00 (the Main Street and Prudential Consideration). The first $25.0 million of such aggregate consideration is payable in cash, with the remaining portion of such aggregate consideration consisting of newly issued shares (at a value of $10.00 per share) of Hennessy Capital common stock (subject to certain adjustments discussed below). Such consideration will be paid or issued, as applicable, at the closing of the Business Combination; |
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The cash consideration to be paid to Main Street and Prudential will be increased by an amount equal to the amount of cash in Hennessy Capitals trust account that is not used to satisfy the Redemption Offer, and any such increase will proportionately reduce the stock consideration to be issued to Main Street and Prudential (at a value of $10.00 per share) to the Main Street and Prudential Agreement; |
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Hennessy Capital will also have the option, in its sole discretion, to increase the cash consideration to be paid to Main Street and Prudential and to proportionately reduce the stock consideration to be issued to Main Street and Prudential to the Main Street and Prudential Agreement; |
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With respect to any shares of Hennessy Capital common stock issued to Main Street and Prudential to the Main Street and Prudential Agreement, Hennessy Capital will use its reasonable best efforts to register such shares within 60 days but in no event later than 90 days of the closing of the Business Combination in accordance with the terms of the Registration Rights Agreement (as defined below); |
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Hennessy Capital will not require, and will use reasonable best efforts to cause underwriters to not require, Main Street and Prudential to agree to any lock up agreement, market standoff agreement or holdback agreement; |
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Hennessy Capital will use reasonable best efforts to facilitate the sale of the shares of Hennessy Capital common stock issued to Main Street and Prudential to the Main Street and Prudential Agreement, and upon the earlier to occur of (i) such time that all of such shares have been sold and (ii) the date that is 120 days after the closing of the Business Combination, Hennessy Capital shall, except for with respect to unsold shares that Main Street and Prudential elect to retain, pay to Main Street and Prudential an amount equal to the negative difference between the proceeds received from such sales and what would have been received if each sale had been consummated at $10 per share; |
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if Main Street and Prudential are issued any shares of common stock of Hennessy Capital to the Main Street and Prudential Agreement, Hennessy Capital will pay a $500,000 fee to Main Street and Prudential; |
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the Merger Agreement will not be amended, and no provision thereunder will be waived, in any manner that is material and adverse to Main Street and Prudential, and the Registration Rights Agreement will not be changed prior to its execution by the parties contemplated to be parties thereto in a manner that is material and adverse to Main Street and Prudential, in each case without the prior written consent of Main Street and Prudential; and |
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Hennessy Capital will pay all of the reasonable fees and expenses of Main Streets and Prudentials legal counsel incurred in connection with the Main Street and Prudential Agreement and related documentation and the registration of any Hennessy Capital common stock issued to the Main Street and Prudential Agreement. |
The Main Street and Prudential Agreement will automatically
terminate if the closing of the Business Combination has not
occurred on or before June 30, 2017.
The Main Street and Prudential Agreement is filed with this
Report as Exhibit 10.4 hereto and is incorporated herein by
reference, and the foregoing description of the Main Street and
Prudential Agreement is qualified in its entirety by reference
thereto.
Sponsor Share Forfeiture Agreement
On December 22, 2016, the Sponsor, the Company and Daseke entered
into the Sponsor Share Forfeiture Agreement, to which the Sponsor
agreed to the forfeiture of 50% of its founder shares of Hennessy
Capital common stock for the benefit of Daseke stockholders.
Prior to the closing of the Business Combination, the Sponsor
will forfeit to the Company that number of Sponsors founder
shares equal to (a) 2,274,988 less (b) 50% of the Utilization Fee
Shares to the Company for cancellation, and the Company will
issue an equivalent number of newly issued shares of Hennessy
Capital common stock to Daseke stockholders as part of the
Closing Merger Consideration. The Sponsor has also agreed in the
Sponsor Share Forfeiture Agreement that it will not, directly or
indirectly, transfer or otherwise dispose of the founder shares
to be so forfeited prior to the closing of the Business
Combination.
The Sponsor Share Forfeiture Agreement is filed with this Report
as Exhibit 10.5 hereto and is incorporated herein by reference,
and the foregoing description of the Sponsor Share Forfeiture
Agreement is qualified in its entirety by reference thereto.
Registration Rights Agreement
At the closing of the Business Combination, the Company will
enter into an amended and restated registration rights agreement
(the Registration Rights Agreement) with each of the Initial
Hennessy Stockholders, Don R. Daseke, Walden Group, Main Street,
Prudential, the former holders of Daseke Series B preferred
stock, the Preferred Financing investors and the Backstop
Commitment investors. In this Registration Rights Agreement
section, each of the parties to the Registration Rights Agreement
(other than the Company) is referred to as a Restricted
Stockholder.
Resale Shelf Registration Statement.
to the Registration Rights Agreement, the Company has agreed to
file, as soon as reasonably practicable (but in any event no
later than 90 days) after closing of the Business Combination, a
resale shelf registration statement on Form S-3 (the Shelf
Registration Statement), for the benefit of the Restricted
Stockholders, to register (i) the shares of Hennessy Capital
common stock issued to Daseke stockholders upon closing of the
Business Combination as part of the Closing Merger Consideration,
(ii) the founder shares held by the Initial Hennessy
Stockholders, (iii) the placement warrants (including any shares
of the Companys common stock issued or issuable upon the exercise
of such placement warrants), (iv) the shares of Series A
Convertible Preferred Stock issued in the Preferred Financing
(including any shares of the Companys common stock issued or
issuable upon conversion of such preferred shares), (v) the
shares of the Companys common stock issued to Backstop Commitment
investors as Utilization Fee Shares or in a private placement by
the Company to the Backstop and Subscription Agreement and (vi)
any shares of the Companys common stock issued to Main Street and
Prudential to the Main Street and Prudential Agreement. In
addition, the Company intends to register the shares issuable
upon the exercise of the public warrants in the Shelf
Registration Statement. The Company is obligated to use
commercially reasonable efforts to cause the Shelf Registration
Statement to be declared effective by the SEC within 180 days
following the closing of the Business Combination, and to use
best efforts to maintain the Shelf Registration Statement
continuously effective under the Securities Act, subject to
certain permitted blackout periods, until the earliest to occur
of (a) 36 months after the effective date of the Shelf
Registration Statement, (b) the date on which all the equity
securities covered by the Shelf Registration Statement have been
sold or distributed or (c) the date on which the equity
securities covered by the Shelf Registration Statement first
become eligible for sale to Rule 144 under the Securities Act
without volume limitation or other restrictions on transfer
thereunder. There are no penalties associated with delays in
registering such securities under the Shelf Registration
Statement.
Certain Restricted Stockholders (consisting of the Initial
Hennessy Stockholders, investors in the Preferred Financing,
investors in the Backstop Commitment, Don R. Daseke, Walden
Group, Main Street, Prudential, Joseph Kevin Jordan, Daseke
Trucking Preferred, LP, Gekabi Capital Management, LP, VCA Daseke
LP and Daniel Wirkkala) (each such person, a Demand Right Holder)
will have the right, subject to certain conditions, to demand an
underwritten offering of their equity securities. Except for
underwritten offering demands by Main Street and Prudential,
which shall be unlimited, the Company is not obligated to effect
more than (i) two underwritten offerings for Don R. Daseke and
Walden Group (taken together) or (ii) one underwritten offering
for the other Demand Right Holders (acting individually), in each
case less any demand registrations initiated by such person.
In addition, the Company is also not obligated to effect any
underwritten offering demand unless the minimum aggregate
offering price is at least $5.0 million. This minimum aggregate
offering price does not apply to underwritten offering demands by
Main Street or Prudential.
Demand Rights.
If (a) the Shelf Registration Statement is not declared effective
by the SEC on or prior to the date that is 180 days after the
closing of the Business Combination or (b) at any time during the
24 month period following the effective date of the Shelf
Registration Statement, the Shelf Registration Statement is not
available to the Restricted Stockholders (subject to certain
specified exceptions), the Demand Right Holders will have the
right, subject to certain conditions, to require the Company by
written notice to prepare and file a registration statement
registering the offer and sale of a certain number of registrable
securities (which offering may, in certain cases, be in the form
of an underwritten offering). Except for demand registrations
initiated by Main Street and Prudential, which shall be
unlimited, the Company is not obligated to effect more than (i)
two demand registrations for Don R. Daseke and Walden Group
(taken together) or (ii) one demand registration for the other
Demand Right Holders (acting individually), in each case less any
underwritten shelf offerings initiated by such person.
In addition, the Company is also not obligated to effect any
demand registration in the form of an underwritten offering
unless the minimum aggregate offering price is at least $5.0
million (if on Form S-3) or at least $25.0 million (if the
Company is not eligible to use Form S-3 or any successor form or
similar short-form registration). The minimum aggregate offering
price does not apply to demand registrations initiated by Main
Street or Prudential.
Piggyback Rights.
If (a)(i) the Shelf Registration Statement is not declared
effective by the SEC on or prior to the date that is 180 days
after the closing of the Business Combination or (ii) at any time
during the 24 month period following the effective date of the
Shelf Registration Statement, the Shelf Registration Statement is
not available to the Restricted Stockholders (subject to certain
specified exceptions), and (b) the Company proposes to file a
registration statement under the Securities Act with respect to
an offering of equity securities for its own account or for the
account of stockholders of the Company (other than those an
offering to a registration statement on a form that does not
permit registration for resale by the Restricted Stockholders),
then the Restricted Stockholders will have customary piggyback
registration rights that allow them to include their equity
securities in any such registration statement. In addition, if
the Company proposes to effect an underwritten offering for its
own account or for the account of stockholders of the Company,
then the Restricted Stockholders will have customary piggyback
rights that allow them to include their equity securities in such
underwritten offering, subject to proportional cutbacks based on
the identity of the party initiating such offering.
Limitations; Expenses; Indemnification.
These registration rights are subject to certain customary
limitations, including the right of the underwriters to limit the
number of securities to be included in an underwritten public
offering and the Companys right to delay or withdraw a
registration statement under certain circumstances. The Company
will generally be required to bear the registration expenses,
other than underwriting discounts and commissions and transfer
taxes, associated with any registration and sale of its equity
securities held by the Restricted Stockholders. In addition, the
Company will pay the reasonable fees and expenses of one legal
counsel selected by the majority-in-interest of the Demand Right
Holders initiating a demand registration. Under the Registration
Rights Agreement, the Company has agreed to indemnify the
Restricted Stockholders against any losses or damages resulting
from any untrue statement or omission of a material fact in any
registration statement or prospectus to which they sell its
equity securities, unless such liability arose from their
misstatement or omission, and each of the Restricted
Stockholders, severally and individually, has agreed to indemnify
the Company against any losses or damages caused by such
Restricted Stockholders misstatements or omissions in those
documents.
A form of the Registration Rights Agreement is filed with this
Report as Exhibit 10.6 and is incorporated herein by reference,
and the foregoing description of the Registration Rights
Agreement is qualified in its entirety by reference thereto.
Lock-Up Agreements
At the closing of the Business Combination, Dasekes directors and
executive officers and persons that beneficially own at least one
percent (1%) of Dasekes common stock immediately prior to the
consummation of the Business Combination each will enter into a
180-day lock-up agreement (except for (x) Daseke Trucking
Preferred, LLC and Gekabi Capital Management, LP, for which such
lock-up period will be 120 days post-closing, and (y) Don R.
Daseke and his affiliates, including Walden Group, for which such
lock-up period will be three years post-closing) with the Company
with respect to the shares of the Companys common stock received
by such person as part of the Closing Merger Consideration (the
lock-up shares). to the lock-up agreements, each party will agree
that for its respective lock-up period, such party will not (i)
sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the
Exchange Act with respect to any lock-up shares of such party,
(ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of
ownership of any lock-up shares of such party, in cash or
otherwise, or (iii) publicly announce any intention to effect any
transaction specified in clause (i) or (ii); provided, however,
Don R. Daseke and his affiliates, including Walden Group, may
transfer up to 10% of his or its lock-up shares of Hennessy
Capital stock to a charity or educational institution to the
extent such transfer does not involve a disposition for value and
such transferee agrees to be bound by the terms and conditions of
the lock-up agreement until the 180thday after such
transferee receives such shares. Notwithstanding the foregoing,
each party may sell or otherwise transfer any lock-up shares of
such party to, among other persons, its equity holders or other
affiliates or immediate family members, provided in each such
case that the transferee thereof agrees to be bound by the
restrictions set forth in the lock-up agreement applicable to
such lock-up shares.
A form of the lock-up agreement is filed with this Report as
Exhibit 10.7 hereto and is incorporated herein by reference, and
the foregoing description of the lock-up agreement is qualified
in its entirety by reference thereto.
Debt Commitment Letter
In connection with the transactions contemplated by the Merger
Agreement, Hennessy Capital entered into a debt commitment letter
and related fee letter dated as of December 22, 2016
(collectively, the Term Loan Commitment Letter) with Credit
Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands
Branch, UBS AG, Stamford Branch and UBS Securities LLC, providing
for a proposed new seven-year, $350.0 million senior secured term
loan facility under a loan agreement to be entered into
substantially concurrently with the closing of the Business
Combination with Merger Sub, initially, and Daseke, upon
consummation of the Business Combination, as borrower (the Term
Loan Borrower), Credit Suisse AG, Cayman Islands Branch, as
administrative agent, and the lenders party thereto. The Term
Loan Facility will consist of (i) a $250.0 million term loan
funded on the closing date of the Term Loan Facility (the Closing
Date Term Loan), and (ii) up to $100.0 million of term loans to
be funded from time to time on or after the closing date of the
Business Combination for a 12-month period thereafter under a
delayed draw term loan facility (the Delayed Draw Term Loans and,
together with the Closing Date Term Loan, the Term Loan
Facility). Additionally, the size of the Term Loan Facility could
increase from time to time to an uncommitted incremental facility
by up to the sum of (a) a fixed dollar amount to be determined
and (b) an unlimited amount, which availability is based on a
leverage ratio-based formula. Term loans under the Term Loan
Facility will bear interest at rates based upon, at the Term Loan
Borrowers election from time to time, either a base rate plus an
applicable margin, subject to a base rate floor, or adjusted
LIBOR rate plus an applicable margin, subject to a LIBOR floor.
The Term Loan Facility will contain a financial covenant
requiring the Company to maintain a consolidated total leverage
ratio at all times of less than or equal to an amount (with
step-downs) to be determined. The Companys consolidated total
leverage ratio will be defined as the ratio of (1) consolidated
total debt minus unrestricted cash and cash equivalents and cash
and cash equivalents restricted in favor of the administrative
agent and the lenders not to exceed an amount to be agreed, to
(2) the Companys consolidated EBITDA for the trailing 12 month
period (with add-backs permitted to consolidated EBITDA to be
agreed, including in respect of synergies and cost-savings
reasonably identifiable and factually supportable that are
anticipated to be realized in an aggregate amount not to exceed a
specified threshold and subject to other customary limitations).
The commitment to provide the Term Loan Facility is subject to
certain representations, warranties, covenants and closing
conditions, including, but not limited to (A) satisfactory
evidence that (i) the contribution of cash consideration to the
Company contemplated by the Term Loan Commitment Letters shall
have been consummated prior to or substantially concurrently with
the funding of the initial borrowings under the debt facilities,
(ii)the refinancing of certain existing indebtedness of Daseke
and its subsidiaries shall have occurred prior to or
substantially concurrently with the funding of the initial
borrowings under the debt facilities, (iii) the proposed $70.0
million amended and restated senior secured asset-based revolving
credit facility shall be effective concurrently with the initial
borrowings under the Term Loan Facility and (iv) the arrangers of
the Term Loan Facility shall have been afforded a marketing
period of at least 15 consecutive business days (commencing no
earlier than January 9, 2017 and ending no later than the
business day immediately prior to the closing date of the Term
Loan Facility) commencing upon receipt of the required financial
statements and projections, to syndicate the Term Loan Facility;
(B) the negotiation of definitive documentation for the Term Loan
Facility; and (C) other customary closing conditions. Daseke will
pay customary fees and expenses in connection with the Term Loan
Commitment Letter and the Term Loan Facility, and, subject to
customary exceptions, the Company will indemnify the lenders for
certain losses incurred by the lenders in connection with the
transactions contemplated by the Term Loan Commitment Letter.
The Term Loan Commitment Letter is filed with this Report as
Exhibit 10.8 hereto and is incorporated herein by reference, and
the foregoing description of the Term Loan Commitment Letter is
qualified in its entirety by reference thereto.
Item 3.02 Unregistered Sales of Equity
Securities.
The disclosure set forth above in Item 1.01 of this Current
Report on Form 8-K is incorporated by reference herein. The
shares of common stock issuable as part of the Total Merger
Consideration to the Merger Agreement, the shares of Series A
Convertible Preferred Stock of the Company (including the shares
of Company common stock issuable upon conversion thereof) to be
issued in the Preferred Financing and the shares of common stock
issuable in the Backstop Commitment will not be registered under
the Securities Act in reliance upon the exemption provided in
Section 4(a)(2) of the Securities Act and/or Regulation D
promulgated thereunder.
Daseke has engaged Bill Durham to serve as the purchaser
representative for two stockholders of Daseke who are not
accredited investors, which purchaser representative meets all of
the conditions set forth in Rule 501(i) of Regulation D, as
required to comply with applicable federal securities laws in
connection with the issuance of shares of Company common stock to
these two Daseke stockholders in the Business Combination. Mr.
Durham is a registered investment adviser, is personally invested
in Daseke via VCA Daseke, LP, a single purpose entity created
exclusively to invest in Daseke (which owns approximately 6.8% of
Daseke’s Series B Convertible Preferred Stock), currently has
observation rights for the Daseke board of directors and does not
otherwise have any business or other significant relationships
with Daseke or Don R. Daseke.
Additional Information About the Proposed Business
Combination and Where to Find It
The proposed Business Combination will be submitted to
stockholders of the Company for their consideration.The Company
has filed with the SEC a preliminary proxy statement on December
22, 2016 (and intends to file with the SEC a definitive proxy
statement) in connection with the Business Combination and
related matters and will mail a definitive proxy statement and
other relevant documents to its stockholders as of the record
date established for voting on the Business Combination. The
Companys stockholders and other interested persons are advised to
read the preliminary proxy statement and any amendments thereto
and, once available, the definitive proxy statement, in
connection with the Companys solicitation of proxies for its
special meeting of stockholders to be held to approve the
Business Combination and related matters, because these documents
will contain important information about the Company, Daseke and
the Business Combination. Stockholders may also obtain a copy of
the proxy statement as well as other documents filed with the SEC
by the Company, without charge, at the SECs website located at
www.sec.gov or by directing a request to Nicholas A. Petruska,
Executive Vice President, Chief Financial Officer and Secretary,
700 Louisiana Street, Suite 900, Houston, Texas 77002, or by
telephone at (713) 300-8242.
Participants in the Solicitation
The Company and its directors and executive officers and other
persons may be deemed to be participants in the solicitation of
proxies from the Companys stockholders in respect of the proposed
Business Combination. Information regarding the Companys
directors and executive officers is available in the Companys
preliminary proxy statement filed by the Company with the SEC on
December 22, 2016. Additional information regarding the
participants in the proxy solicitation and a description of their
direct and indirect interests in connection with the Business
Combination are contained in the preliminary proxy statement,
which can be obtained free of charge from the sources indicated
above.
Forward Looking Statements
This Report includes forward-looking statements within the
meaning of the safe harbor provisions of the United States
Private Securities Litigation Reform Act of 1995. Forward-looking
statements may be identified by the use of words such as
estimate, plan, project, forecast, intend, expect, anticipate,
believe, seek, target or other similar expressions that predict
or indicate future events or trends or that are not statements of
historical matters. Such forward-looking statements include,
without limitation, statements regarding the anticipated benefits
of the Business Combination, the future financial performance of
the Company following the Business Combination, changes in the
market for Dasekes services, potential future acquisitions and
other growth strategies and opportunities, and are based on
current information and expectations, forecasts and assumptions,
and involve a number of judgments, risks and uncertainties.
Accordingly, forward-looking statements should not be relied upon
as representing the Companys views as of any subsequent date, and
the Company does not undertake any obligation to update
forward-looking statements to reflect events or circumstances
after the date they were made, whether as a result of new
information, future events or otherwise, except as may be
required under applicable securities laws. You should not place
undue reliance on these forward-looking statements. As a result
of a number of known and unknown risks and uncertainties, actual
results or performance may be materially different from those
expressed or implied by these forward-looking statements. Some
factors that could cause actual results to differ include, but
are not limited to: (1) the occurrence of any event, change or
other circumstances that could give rise to the termination of
the Merger Agreement; (2) the outcome of any legal proceedings
that may be instituted against Daseke or the Company following
announcement of the proposed Business Combination and related
transactions; (3) the inability to complete the transactions
contemplated by the Merger Agreement due to the failure to obtain
approval of the stockholders of the Company, consummate the
anticipated debt financing or satisfy other conditions to the
closing of the Business Combination (4) the ability to obtain or
maintain the listing of the Companys common stock on the NASDAQ
Capital Market following the Business Combination; (5) the risk
that the proposed Business Combination disrupts the parties
current plans and operations as a result of the announcement and
consummation of the transactions described herein; (6) the
ability to recognize the anticipated benefits of the Business
Combination, which may be affected by, among other things,
competition and the ability of the combined business to grow and
manage growth profitably; (7) costs related to the Business
Combination; (8) changes in applicable laws or regulations; (9)
the possibility that Daseke or the Company may be adversely
affected by other economic, business, and/or competitive factors;
and (10) other risks and uncertainties indicated from time to
time in the proxy statement to be filed by the Company in
connection with the Business Combination, including those under
Risk Factors therein, and other factors identified in the
Companys prior and future filings with the SEC, available at
www.sec.gov.
No Offer or Solicitation of Securities
This Report does not constitute an offer to sell or the
solicitation of an offer to buy any securities, nor shall there
be any sale of securities in any jurisdiction in which the offer,
solicitation or sale would be unlawful prior to the registration
or qualification under the securities laws of any such
jurisdiction.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Number | Description | |
| 2.1 |
Merger Agreement, dated as of December 22, 2016, by and among Hennessy Capital Acquisition Corp. II, HCAC Merger Sub, Inc., Daseke, Inc. and Don R. Daseke, solely in his capacity as the Stockholder Representative. |
|
| 10.1 |
Form of Backstop and Subscription Agreement by and among Hennessy Capital Acquisition Corp. II, Hennessy Capital Partners II LLC and the investor(s) party thereto. |
|
| 10.2 |
Form of Subscription Agreement for 7.625% Series A Convertible Preferred Stock by and among Hennessy Capital Acquisition Corp. II and the investor(s) party thereto (including the form of Certificate of Designations, Preferences, Rights and Limitations of 7.625% Series A Convertible Cumulative Preferred Stock of Daseke, Inc. (f/k/a Hennessy Capital Acquisition Corp. II) attached as Exhibit A thereto). |
|
| 10.3 |
Voting and Support Agreement, dated as of December 22, 2016, by and among Daseke, Inc., Hennessy Capital Partners II LLC and the other initial stockholders of Hennessy Capital Acquisition Corp. II set forth therein. |
|
| 10.4 |
Letter Agreement, dated as of December 22, 2016, by and among Hennessy Capital Acquisition Corp. II, Daseke, Inc., The Walden Group, Inc. Prudential Capital Partners IV, L.P., Prudential Capital Partners Management Fund IV, L.P., Prudential Capital Partners (Parallel Fund) IV, L.P., Main Street Capital Corporation, Main Street Capital II, LP and Main Street Mezzanine Fund, LP. |
|
| 10.5 |
Sponsor Share Forfeiture Agreement, dated as of December 22, 2016, by and between Hennessy Capital Acquisition Corp. II, Hennessy Capital Partners II LLC and Daseke, Inc. |
|
| 10.6 |
Form of Amended and Restated Registration Rights Agreement to be entered into by and among Hennessy Capital Acquisition Corp. II, Hennessy Capital Partners II LLC and the investors to be named therein. |
|
| 10.7 |
Form of Lock-Up Agreement to be entered into by and between Hennessy Capital Acquisition Corp. II and the stockholders named therein. |
|
| 10.8 |
Commitment Letter, dated as of December 22, 2016 by and among Hennessy Capital Acquisition Corp. II and Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, UBS AG, Stamford Branch and UBS Securities LLC. |
___________ The exhibits and schedules to this Exhibit have been
omitted in accordance with Regulation S-K Item 601(b)(2). The
registrant agrees to furnish supplementally a copy of all omitted
exhibits and schedules to the Securities and Exchange Commission
upon its request.
HENNESSY CAPITAL ACQUISITION CORP. II (NASDAQ:HCAC) Recent Trading Information
HENNESSY CAPITAL ACQUISITION CORP. II (NASDAQ:HCAC) closed its last trading session down -0.02 at 10.06 with 52,660 shares trading hands.