Forward Air (FWRD) S-1IPO registration

As filed with the Securities and Exchange Commission on June 10, 2024

Registration No. 333-

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM  S-1

REGISTRATION STATEMENT

FORWARD AIR CORPORATION

(Exact name of registrant as specified in its charter)

1915 Snapps Ferry Road, Building N

Greeneville, Tennessee 37745

 

Michael L. Hance

Chief Legal Officer and Secretary

1915 Snapps Ferry Road, Building N

Greeneville, Tennessee 37745

(423) 636-7000

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the SEC, acting pursuant to said Section 8(a), may determine.

SUBJECT TO COMPLETION, DATED JUNE 10, 2024

FORWARD AIR CORPORATION

UP TO 14,015,018 SHARES OF COMMON STOCK

 

This prospectus relates to the offer and sale from time to time by the selling shareholders named in this prospectus (the “selling shareholders”) of up to 14,015,018 shares of Common Stock, par value $0.01 (“Common Stock”) of Forward Air Corporation (the “Company,” “we,” “us,” or “our”) consisting of:

 

 We will not receive any proceeds from the sale of shares of Common Stock by the selling shareholders pursuant to this prospectus.

 

 

You should read this prospectus and any prospectus supplement or amendment carefully before you invest in our Common Stock.

 

Our shares of Common Stock are listed on the Nasdaq Capital Market (“Nasdaq”) under the symbol “FWRD.” On June 6, 2024, the closing price of our Common Stock was $19.35 per share.

 

The date of this prospectus is _____, 2024.

 

TRADEMARKS

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

 

Certain statements made in this prospectus and the documents incorporated by reference into this prospectus are “forward-looking statements.” Words such as “estimates,” “projected,” “expects,” “estimated,” “anticipates,” “forecasts,” “plans,” “intends,” “believes,” “seeks,” “may,” “will,” “would,” “future,” “propose,” “target,” “goal,” “objective,” “outlook” and variations of these words or similar expressions (or the negative versions of such words or expressions) are intended to identify forward-looking statements. These forward-looking statements are not guarantees of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and other important factors, many of which are outside our control, that could cause actual results or outcomes to differ materially from those discussed in the forward-looking statements. Important factors, among others, that may affect actual results or outcomes include:

Business Overview

Omni Acquisition

On January 25, 2024 (the “Closing Date”), we acquired Omni, Management Holdings and Omni’s direct and indirect subsidiaries through a series of transactions involving our direct and indirect subsidiaries, for a combination of (a) $100 million in cash (which includes transaction costs of approximately $80 million), (b) the Common Equity Consideration (as defined below) representing 5,135,008 shares of the Common Stock on an as-exchanged basis and (c) Convertible Preferred Equity Consideration (as defined below) representing an additional 8,880,010 shares of Common Stock on an as-converted and as-exchanged basis. The “Common Equity Consideration” consists of (i) Common Stock, (ii) units of Clue Opco LLC, a newly formed subsidiary of ours (“Opco”), designated as “Class B Units” (“Opco Class B Units”) and corresponding fractional units of our preferred stock designated as “Series B Preferred Stock” (“Company Series B Preferred Stock”), each representing one one-thousandth of a share of Company Series B Preferred Stock (“Company Series B Preferred Units”) which, together, are exchangeable into Common Stock and (iii) Management Holdings Class B Units (as defined below), which are exchangeable into Opco Class B Units, and corresponding Company Series B Preferred Units. The “Convertible Preferred Equity Consideration” consists of (i) fractional units of our convertible preferred stock designated as “Series C Preferred Stock” (“Company Series C Preferred Stock”) each representing one one-thousandth of a share of Company Series C Preferred Stock (“Company Series C Preferred Units”) that converted into Common Stock upon receipt of the Conversion Approval, (ii) Opco Series C-2 Preferred Units that converted into Opco Class B Units and corresponding Company Series B Preferred Units upon receipt of the Conversion Approval and are exchangeable into Common Stock and (iii) the Management Holdings Series C-2 Units that converted into Management Holdings Class B Units and corresponding Company Series B Preferred Units upon receipt of the Conversion Approval and are exchangeable into Opco Class B Units and corresponding Company Series B Preferred Units.

Omni, founded in 2000 and headquartered in Dallas, Texas, is an asset-light, high-touch logistics and supply chain management company with deep customer relationships in high-growth end markets. Omni delivers domestic and international freight forwarding, fulfillment services, customs brokerage, distribution, and value-added services for time-sensitive freight to United States-based customers operating both domestically and internationally. Omni provides business-to-business solutions to prominent United States-based customers across a variety of attractive end markets, including the technology, retail, media, logistics, life sciences and e-commerce sectors, many of which have had long-term relationships with Omni.

Prior to the completion of the Omni Acquisition, we completed a restructuring, pursuant to which, among other things, we contributed all of our operating assets to Opco. Opco has been structured as an umbrella partnership C corporation through which the Omni Holders hold (i) a portion of the Common Equity Consideration in the form of Opco Class B Units and corresponding Company Series B Preferred Units and (ii) a portion of the Convertible Preferred Equity Consideration in the form of units of Opco designated as “Series C-2 Preferred Units” (“Opco Series C-2 Preferred Units”). Effective as of the Closing Date, we operate our business through Opco, which indirectly holds all of our and Omni’s assets and operations. Opco is governed by an amended and restated limited liability company agreement of Opco that became effective at the Closing Date (the “Opco LLCA”).

In connection with the Omni Acquisition, Management Holdings became a member of Opco and is structured as the vehicle where certain employees or former employees of Omni or its direct or indirect subsidiaries received their portion of the equity consideration provided in the Omni Acquisition. Through ownership of Management Holdings units, certain employees or former employees of Omni or its direct or indirect subsidiaries indirectly hold units of Opco. Omni Management Holders hold (i) a portion of the Common Equity Consideration in the form of units of Management Holdings designated as “Class B Units” which have the same rights and preferences as the Opco Class B Units (“Management Holdings Class B Units”) and corresponding Company Series B Preferred Units and (ii) a portion of the Convertible Preferred Equity Consideration in the form of units of Management Holdings designated as “Series C-2 Units” which have the same rights and preferences as the Opco Series C-2 Preferred Units (“Management Holdings Series C-2 Units”). Effective as of the Closing Date, we serve as the manager of Management Holdings, which is governed by an amended and restated limited liability company agreement of Management Holdings that became effective at the Closing Date (the “Management Holdings LLCA”).

Corporation Information

We are a Tennessee corporation. Our principal executive offices are located at 1915 Snapps Ferry Road, Building N Greeneville, TN 37745 and our telephone number is (423) 636-7000. Our website is www.forwardair.com. Our website and the information contained on, or accessed through, our website are not part of this prospectus, and you should rely only on the information contained in this prospectus and incorporated by reference into this prospectus when making a decision as to whether to invest in our securities.

DIVIDEND POLICY

 We have previously paid quarterly cash dividends on our Common Stock. However, beginning with the quarter ended March 31, 2024, we have suspended the payment of quarterly dividends on our Common Stock in order to execute on de-risking our capital structure. Any future determination related to our dividend policy will be made at the discretion of our board of directors (the “Board”) after considering our financial condition, results of operations, capital requirements, business prospects and other factors our Board deems relevant, and subject to the restrictions contained in any future financing instruments. In addition, our current credit facility restricts the payment of dividends.

RISK FACTORS

We cannot predict the prices at which shares of our Common Stock may trade. The market price of shares of our Common Stock may be highly volatile and fluctuate significantly due to a number of factors, some of which may be beyond our control, including:

We will not issue any new shares of our Common Stock and will not receive any proceeds from the sale of shares of our Common Stock by the selling shareholders. The selling shareholders will receive all proceeds from the sale of the shares. Consequently, none of the proceeds from the sales of shares by the selling shareholders will be available to us to fund our operations, capital expenditures, compensation plans or acquisition opportunities. See “Use of Proceeds.”

We have previously paid quarterly cash dividends on our Common Stock. However, beginning with the quarter ended March 31, 2024, we have suspended the payment of quarterly dividends on our Common Stock in order to execute on de-risking our capital structure. The payment of any dividends in the future to our shareholders, and the timing and amount thereof, will fall within the discretion of our Board. Our Board’s decisions regarding the payment of dividends will depend on many factors, such as our financial condition, earnings, capital requirements, debt service obligations, restrictive covenants in the agreements governing our indebtedness, general economic business conditions, industry practice, legal requirements and other factors that our Board may deem relevant. Our ability to pay dividends will depend on our ongoing ability to generate cash from operations and on our access to the capital markets.

USE OF PROCEEDS

All of the shares of Common Stock offered by the selling shareholders pursuant to this prospectus will be sold by the selling shareholders for their respective accounts. The selling shareholders will receive all proceeds from the sale of the shares of Common Stock offered by this prospectus and any accompanying prospectus supplement. We will not receive any of the proceeds from these sales.

 

SELLING SHAREHOLDERS

 

This prospectus relates to the resale by the selling shareholders from time to time of up to 14,015,018 shares of Common Stock. The selling shareholders may from time to time offer and sell any or all of the shares of Common Stock set forth below pursuant to this prospectus and any accompanying prospectus supplement. When we refer to the “selling shareholders” in this prospectus, we mean the persons listed in the table below, and the pledgees, donees, transferees, assignees, successors, designees and others who later come to hold any of the selling shareholders’ interest in the Common Stock other than through a public sale.

PLAN OF DISTRIBUTION

 

We are registering the possible resale by the selling shareholders of up to 14,015,018 shares of Common Stock.

 

We will not receive any of the proceeds from the sale of the securities by the selling shareholders. The aggregate proceeds to the selling shareholders will be the purchase price of the securities less any discounts and commissions borne by the selling shareholders.

 

The selling shareholders will pay any underwriting discounts and commissions and expenses incurred by the selling shareholders for brokerage, accounting, tax or legal services or any other expenses incurred by the selling shareholders in disposing of the securities. We will bear all other costs, fees and expenses incurred in effecting the registration of the securities covered by this prospectus, including, without limitation, all registration and filing fees, Nasdaq listing fees and fees and expenses of our counsel and our independent registered public accountants.

 

The securities beneficially owned by the selling shareholders covered by this prospectus may be offered and sold from time to time by the selling shareholders. The term “selling shareholders” includes donees, pledgees, transferees or other successors in interest selling securities received after the date of this prospectus from a selling shareholder as a gift, pledge, partnership distribution or other transfer. The selling shareholders will act independently of us in making decisions with respect to the timing, manner and size of each sale. Such sales may be made on one or more exchanges or in the over-the-counter market or otherwise, at prices and under terms then prevailing or at prices related to the then current market price or in negotiated transactions. Each selling shareholders reserves the right to accept and, together with its respective agents, to reject, any proposed purchase of securities to be made directly or through agents. The selling shareholders and any of their permitted transferees may sell their securities offered by this prospectus on any stock exchange, market or trading facility on which the securities are traded or in private transactions. If underwriters are used in the sale, such underwriters will acquire the shares for their own account. These sales may be at a fixed price or varying prices, which may be changed, or at market prices prevailing at the time of sale, at prices relating to prevailing market prices or at negotiated prices. The securities may be offered to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. The obligations of the underwriters to purchase the securities will be subject to certain conditions. The underwriters will be obligated to purchase all the securities offered if any of the securities are purchased.

 

Subject to the limitations set forth in any applicable registration rights agreement, the selling shareholders may use any one or more of the following methods when selling the securities offered by this prospectus:

 

In addition, a selling shareholder that is an entity may elect to make a pro rata in-kind distribution of securities to its members, partners or stockholders pursuant to the registration statement of which this prospectus is a part by delivering a prospectus with a plan of distribution. Such members, partners or stockholders would thereby receive freely tradeable securities pursuant to the distribution through a registration statement. To the extent a distributee is an affiliate of ours (or to the extent otherwise required by law), we may file a prospectus supplement in order to permit the distributees to use the prospectus to resell the securities acquired in the distribution.

 

There can be no assurance that the selling shareholders will sell all or any of the securities offered by this prospectus. In addition, the selling shareholders may also sell securities under Rule 144 under the Securities Act, if available, or in other transactions exempt from registration, rather than under this prospectus. The selling shareholders have the sole and absolute discretion not to accept any purchase offer or make any sale of securities if they deem the purchase price to be unsatisfactory at any particular time.

 

The selling shareholders also may transfer the securities in other circumstances, in which case the transferees, pledgees or other successors-in-interest will be the selling beneficial owners for purposes of this prospectus. Upon being notified by a selling shareholder that a donee, pledgee, transferee, other successor-in-interest intends to sell our securities, we will, to the extent required, promptly file a supplement to this prospectus to name specifically such person as a selling shareholder.

 

With respect to a particular offering of the securities held by the selling shareholders, to the extent required, an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement of which this prospectus is part, will be prepared and will set forth the following information:

 

In connection with distributions of the securities or otherwise, the selling shareholders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions may engage in short sales of the securities in the course of hedging the positions they assume with selling shareholders. The selling shareholders may also sell the securities short and redeliver the securities to close out such short positions. The selling shareholders may also enter into option or other transactions with broker-dealers or other financial institutions which require the delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction). The selling shareholders may also pledge securities to a broker-dealer or other financial institution, and, upon a default, such broker-dealer or other financial institution, may effect sales of the pledged securities pursuant to this prospectus (as supplemented or amended to reflect such transaction).

 

In order to facilitate the offering of the securities, any underwriters or agents, as the case may be, involved in the offering of such securities may engage in transactions that stabilize, maintain or otherwise affect the price of our securities. Specifically, the underwriters or agents, as the case may be, may over-allot in connection with the offering, creating a short position in our securities for their own account. In addition, to cover overallotments or to stabilize the price of our securities, the underwriters or agents, as the case may be, may bid for, and purchase, such securities in the open market. Finally, in any offering of securities through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allotted to an underwriter or a broker-dealer for distributing such securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the securities above independent market levels. The underwriters or agents, as the case may be, are not required to engage in these activities, and may end any of these activities at any time.

  

The selling shareholders may solicit offers to purchase the securities directly from, and it may sell such securities directly to, institutional investors or others. In this case, no underwriters or agents would be involved. The terms of any of those sales, including the terms of any bidding or auction process, if utilized, will be described in the applicable prospectus supplement.

 

It is possible that one or more underwriters may make a market in our securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for our securities. Our shares of Common Stock are currently listed on Nasdaq under the symbol “FWRD”.

 

The selling shareholders may authorize underwriters, broker-dealers or agents to solicit offers by certain purchasers to purchase the securities at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we or the selling shareholders pay for solicitation of these contracts.

 

A selling shareholder may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by any selling shareholders or borrowed from any selling shareholders or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from any selling shareholder in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, any selling shareholder may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.

 

In effecting sales, broker-dealers or agents engaged by the selling shareholders may arrange for other broker-dealers to participate. Broker-dealers or agents may receive commissions, discounts or concessions from the selling shareholders in amounts to be negotiated immediately prior to the sale.

 

In compliance with the guidelines of the Financial Industry Regulatory Authority (“FINRA”), the aggregate maximum discount, commission, fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will not exceed 8% of the gross proceeds of any offering pursuant to this prospectus and any applicable prospectus supplement.

 

If at the time of any offering made under this prospectus a member of FINRA participating in the offering has a “conflict of interest” as defined in FINRA Rule 5121, that offering will be conducted in accordance with the relevant provisions of FINRA Rule 5121.

 

To our knowledge, there are currently no plans, arrangements or understandings between the selling shareholders and any broker-dealer or agent regarding the sale of the securities by the selling shareholders. Upon our notification by a selling shareholder that any material arrangement has been entered into with an underwriter or broker-dealer for the sale of securities through a block trade, special offering, exchange distribution, secondary distribution or a purchase by an underwriter or broker-dealer, we will file, if required by applicable law or regulation, a supplement to this prospectus pursuant to Rule 424(b) under the Securities Act disclosing certain material information relating to such underwriter or broker-dealer and such offering.

 

Underwriters, broker-dealers or agents may facilitate the marketing of an offering online directly or through one of their affiliates. In those cases, prospective investors may view offering terms and a prospectus online and, depending upon the particular underwriter, broker-dealer or agent, place orders online or through their financial advisors.

 

In offering the securities covered by this prospectus, the selling shareholders and any underwriters, broker-dealers or agents who execute sales for the selling shareholders may be deemed to be “underwriters” within the meaning of the Securities Act in connection with such sales. Any discounts, commissions, concessions or profit they earn on any resale of those securities may be underwriting discounts and commissions under the Securities Act.

  

The underwriters, broker-dealers and agents may engage in transactions with us or the selling shareholders, or perform services for us or the selling shareholders, in the ordinary course of business.

 

In order to comply with the securities laws of certain states, if applicable, the securities must be sold in such jurisdictions only through registered or licensed brokers or dealers. In addition, in certain states the securities may not be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is complied with.

 

The selling shareholders and any other persons participating in the sale or distribution of the securities will be subject to applicable provisions of the Securities Act and the Exchange Act, and the rules and regulations thereunder, including, without limitation, Regulation M. These provisions may restrict certain activities of, and limit the timing of purchases and sales of any of the securities by, the selling shareholders or any other person, which limitations may affect the marketability of the shares of the securities.

 

We will make copies of this prospectus available to the selling shareholders for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling shareholders may indemnify any agent, broker-dealer or underwriter that participates in transactions involving the sale of the securities against certain liabilities, including liabilities arising under the Securities Act.

 

We have agreed to indemnify the selling shareholders against certain liabilities, including certain liabilities under the Securities Act, the Exchange Act or other federal or state law. Agents, broker-dealers and underwriters may be entitled to indemnification by us and the selling shareholders against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which the agents, broker-dealers or underwriters may be required to make in respect thereof.

LEGAL MATTERS

Greenberg Traurig P.A. will pass upon the validity of the Common Stock offered by this prospectus and certain other matters related to this prospectus.

 

EXPERTS

The consolidated financial statements of Forward Air Corporation appearing in Forward Air Corporation’s Annual Report (Form 10-K) for the year ended December 31, 2023 (including the schedule appearing therein), and the effectiveness of Forward Air Corporation’s internal control over financial reporting as of December 31, 2023 have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements (including the schedule appearing therein) are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.

The financial statements of Omni Newco, LLC as of December 31, 2023 and 2022, and for each of the two years in the period ended December 31, 2023, incorporated herein by reference, have been audited by Deloitte & Touche LLP, an independent auditor, as stated in their report. Such financial statements are incorporated by reference in reliance upon the report of such firm given their authority as experts in accounting and auditing.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-1 under the Securities Act with respect to the securities offered by this prospectus. This prospectus, which forms a part of such registration statement, does not contain all of the information included in the registration statement. For further information pertaining to us and our securities, you should refer to the registration statement and to its exhibits. The registration statement has been filed electronically and may be obtained in any manner listed below. Whenever we make reference in this prospectus to any of our contracts, agreements or other documents, the references are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement or a report we file under the Exchange Act, you should refer to the copy of the contract or document that has been filed. Each statement in this prospectus relating to a contract or document filed as an exhibit to a registration statement or report is qualified in all respects by the filed exhibit.

 

We also file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov and on our website at https://ir.forwardaircorp.com. The information contained on, or that may be accessed through, our website is not part of, and is not incorporated into, this prospectus. You may inspect a copy of the registration statement through the SEC’s website, as provided herein.

 

14,015,018 shares of Common Stock

 

PROSPECTUS

 

 

____, 2024

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

The following table sets forth the estimated expenses to be borne by us in connection with the issuance and distribution of the shares of common stock being registered hereby. All amounts shown are estimates except for the SEC registration fee.

We will bear all costs, expenses and fees in connection with the registration of the securities. selling shareholders, however, will bear all underwriting commissions and discounts, if any, attributable to their respective sales sale of the securities.

 

Item 14. Indemnification of Directors and Officers.

The Tennessee Business Corporation Act authorizes corporations to limit or eliminate the personal liability of directors to companies and their shareholders for monetary damages for breaches of directors’ fiduciary duties, under certain circumstances and subject to certain exceptions. Our Restated Charter (“Restated Charter”), which is included or incorporated by reference an exhibit to our Annual Report on Form 10-K includes a provision that eliminates the personal liability of directors for monetary damages to us or our shareholders for any breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Tennessee Business Corporation Act. Our Restated Charter provides that we shall have the power to indemnify any director, officer, employee, agent or any other person who is serving at our request in that capacity for another entity to the fullest extent permitted by Tennessee law. Our Amended and Restated Bylaws (“Amended and Restated Bylaws”), which is included or incorporated by reference an exhibit to our Annual Report on Form 10-K generally provide that we shall indemnify and pay or reimburse certain expenses, to our directors and officers and any person that served as a director, officer or employee of any other enterprise at our request, to the fullest extent permitted by law. We also are authorized to carry insurance to protect us and any director, officer and employee, to the fullest extent permitted by law.

The Tennessee Business Corporation Act provides that a corporation may indemnify any of its directors and officers against liability incurred in connection with a proceeding if: (a) such person acted in good faith; (b) in the case of conduct in an official capacity with the corporation, the person reasonably believed such conduct was in the corporation’s best interests; (c) in all other cases, the person reasonably believed that the person’s conduct was at least not opposed to the best interests of the corporation; and (d) in connection with any criminal proceeding, such person had no reasonable cause to believe the person’s conduct was unlawful.

In actions brought by or in the right of the corporation, however, the Tennessee Business Corporation Act provides that no indemnification may be made if the director or officer was adjudged to be liable to the corporation. The Tennessee Business Corporation Act also provides that in connection with any proceeding charging improper personal benefit to an officer or director, no indemnification may be made if such officer or director is adjudged liable on the basis that such personal benefit was improperly received.

 

In connection with the Omni Acquisition, we acquired Omni, Management Holdings and Omni’s direct and indirect subsidiaries for a combination of (a) $100 million in cash (which includes transaction costs of approximately $80 million) and (b) (i) the Common Equity Consideration and (ii) the Convertible Preferred Equity Consideration. Such securities were issued pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.

Prior to the consummation of the transactions in connection with the Omni Acquisition, we completed a restructuring, pursuant to which, among other things, we contributed all of its operating assets to Opco. Opco has been structured as an umbrella partnership C corporation through which Omni Holders, as of the Closing Date, hold a portion of the Common Equity Consideration and Convertible Preferred Equity Consideration in the form of Opco units that are now exchangeable for Common Stock as described below.

In connection with the Omni Acquisition, Management Holdings became a member of Opco and is structured as the vehicle where certain employees or former employees of Omni or its direct or indirect subsidiaries received their portion of the equity consideration provided in the Omni Acquisition. Omni Management Holders, as of the Closing Date, hold a portion of the Common Equity Consideration and Preferred Equity Consideration in the form of units in Management Holdings that are now exchangeable into Opco Class B Units (and thereafter will be exchangeable into Common Stock) as described below.

The portion of the transaction consideration that is Common Equity Consideration and paid: (x) to the Omni Holders consists of (i) shares of Common Stock and (ii) Opco Class B Units and corresponding Company Series B Preferred Units that will be exchangeable at the option of the holders thereof into shares of Common Stock pursuant to the Opco LLCA and (y) to the Omni Management Holders consists of Management Holdings Class B Units and corresponding Company Series B Preferred Units, with such Management Holdings Class B Units being exchangeable at the option of the holders thereof into shares of Opco Class B Units pursuant to the Management Holdings LLCA and, subsequently, together with the corresponding number of Company Series B Preferred Units exchangeable into shares of Common Stock pursuant to the Opco LLCA.

The portion of the transaction consideration that is Convertible Preferred Equity Consideration and paid: (x) to the Omni Holders consists of (i) Company Series C Preferred Units that automatically converted into shares of Common Stock upon receipt of Conversion Approval and (ii) Opco Series C-2 Preferred Units that are economically equivalent to the Company Series C Preferred Units and which automatically converted into Opco Class B Units and corresponding Company Series B Preferred Units upon receipt of Conversion Approval pursuant to the Opco LLCA and (y) to the Omni Management Holders consists of Management Holdings Series C-2 Units that are economically equivalent to the Company Series C Preferred Units and which automatically converted into Management Holdings Class B Units and corresponding Company Series B Preferred Units upon receipt of Conversion Approval pursuant to the Management Holdings LLCA, with such Management Holdings Class B Units being exchangeable at the option of the holders thereof into shares of Opco Class B Units pursuant to the Management Holdings LLCA and, subsequently, together with the corresponding number of Company Series B Preferred Units exchangeable into shares of Common Stock pursuant to the Opco LLCA. The Convertible Preferred Equity Consideration had an aggregate liquidation preference of $976,801,100 at the Closing Date (based on a liquidation preference per unit of $110.00 at the Closing Date) and represents an additional 8,880,010 shares of Common Stock on an as-converted and as-exchanged basis.

In order to finance a portion of the cash consideration payable for the Omni Acquisition and the costs and expenses incurred in connection therewith, on October 2, 2023, GN Bondco, LLC, a Delaware limited liability company and wholly owned subsidiary of Omni (the “Escrow Issuer” and consolidated variable interest entity of ours at December 31, 2023) closed its private offering of $725,000,000 aggregate principal amount of its 9.5% senior secured notes due 2031 (the “Notes”), in a transaction exempt from registration under the Securities Act. Upon the closing of the Omni Acquisition, Opco assumed the Escrow Issuer’s obligations under the Notes.

 

The issuance of the foregoing securities was made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act. 

  

*Denotes a management contract or compensatory plan or arrangement.

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Greeneville, State of Tennessee, on June 10, 2024.

  

POWER OF ATTORNEY AND SIGNATURES

Each person whose individual signature appears below hereby authorizes and appoints Shawn Stewart and Jamie G. Pierson and each of them, with full power of substitution and resubstitution and full power to act without the other, as his or her true and lawful attorney-in-fact and agent to act in his or her name, place and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file any and all amendments to this registration statement, including any and all post-effective amendments and amendments thereto, and any registration statement relating to the same offering as this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing, 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 thereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.