Securities Registration: Employee Benefit Plan (s-8)
November 05 2020 - 4:39PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on November 5, 2020
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)
Delaware
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47-3913221
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number)
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15455
Dallas Parkway, Suite 550
Addison,
Texas
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75001
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(Address of principal executive offices)
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(Zip code)
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Inducement Equity Awards
(Full title of the plan)
Soumit
Roy
Chief
Legal Officer, General Counsel and Corporate Secretary
15455 Dallas Parkway, Suite 550
Addison,
Texas
(Name and address of agent for service)
(972)
248-0412
(Telephone number, including area code,
of agent for service)
With a copy to:
Lanchi D. Huynh
Kirkland & Ellis LLP
1601 Elm Street
Dallas, Texas 75201
(214) 972-1770
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨
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Smaller reporting company
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x
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Emerging growth company
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¨
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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. ¨
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be registered (1)
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Proposed maximum offering price per share
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Proposed maximum aggregate offering price
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Amount of registration fee
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Common Stock, par value $0.0001 per share
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112,300 (2)
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$5.09 (3)
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$571,607.00
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$62.36
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(1)
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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, par value $0.0001 per share (“Common Stock”), of Daseke, Inc. (the “registrant”)
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.
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(2)
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Represents shares of Common Stock issuable upon the
vesting and exercise, or settlement, of equity awards to be granted as employment inducement awards pursuant to Rule 5635(c)(4)
of the Nasdaq Listing Rules.
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(3)
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Calculated
solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) and (h) under the Securities Act;
this price is equal to the average of the high and low prices of the Common Stock as reported on The Nasdaq Capital Market on
October 29, 2020.
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EXPLANATORY
NOTE
This
registration statement is being filed for the purpose of registering 112,300 shares of Common Stock reserved for issuance in accordance
with award agreements the registrant expects to enter into with a new employee in connection with such person’s employment,
which awards will be made outside of a stockholder approved equity incentive plan in accordance with the employment inducement
award exemption provided by Rule 5635(c)(4) of the Nasdaq Listing Rules.
Part
I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this registration statement.*
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this registration statement.*
* The documents containing the information specified in this
Part I will be sent or given to the award recipient as specified by Rule 428(b)(1) under the Securities Act. In accordance with
the Note to Part I of Form S-8, such documents are not required to be, and are not, filed with the Securities and Exchange Commission
(the “Commission”) either as part of this registration statement or as a prospectus or prospectus supplement pursuant
to Rule 424 under the Securities Act. Such documents and the documents incorporated by reference in this registration statement
pursuant to Item 3 of Part II hereof, taken together, 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:
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b.
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the registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed with the Commission on May 7, 2020, Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2020, filed with the Commission on August 6, 2020, and Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2020, filed with the Commission on November 4, 2020;
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c.
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the registrant’s Current Reports on Form 8-K filed with the Commission on February 10, 2020, April 1, 2020, April 8, 2020, April 24, 2020, May 12, 2020, May 22, 2020 and August 18, 2020; and
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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 Securities Exchange Act of 1934, as amended, 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 the registrant 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 following is a list of exhibits filed as part of this registration
statement, which are incorporated herein:
* Filed herewith.
Item 9. Undertakings.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
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(i)
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to include any prospectus required by Section 10(a)(3) of
the Securities Act;
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(ii)
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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
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(iii)
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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;
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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.
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(2)
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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.
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(3)
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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.
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(b)
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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.
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(c)
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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.
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SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, 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 November 5, 2020.
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DASEKE, INC.
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By:
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/s/ Christopher
Easter
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Name:
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Christopher Easter
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Title:
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Chief Executive Officer and Director
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Christopher Easter and Soumit Roy, and each of them, his or her true and lawful attorneys-in-fact
and agents, with full power of substitution, for him or her and in his or her 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 of 1933,
this registration statement has been signed below by the following persons in the capacities and on the date indicated.
Signature
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Title
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Date
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/s/ Christopher Easter
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Chief Executive Officer and Director
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November 5, 2020
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Christopher Easter
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(Principal Executive Officer)
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/s/ Jason Bates
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Executive Vice President and Chief Financial Officer
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November 5, 2020
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Jason Bates
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ Brian Bonner
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Chairman of the Board of Directors
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November 5, 2020
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Brian Bonner
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/s/ Kevin M. Charlton
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Director
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November 5, 2020
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Kevin M. Charlton
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/s/ Daniel J. Hennessy
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Director
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November 5, 2020
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Daniel J. Hennessy
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/s/ Chuck Serianni
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Director
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November 5, 2020
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Chuck Serianni
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/s/ Jonathan Shepko
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Director
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November 5, 2020
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Jonathan Shepko
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/s/ Kim Warmbier
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Director
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November 5, 2020
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Kim Warmbier
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/s/ Ena Williams
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Director
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November 5, 2020
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Ena Williams
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