-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WG1BGG9liyK/TLaMrPuo7cy7OvAkv0LCTycslraZkxgyswX7YO5rI4nDcO97Xhd2 3T879V2csl3zEyF1fG6vMw== 0000950144-00-000092.txt : 20000110 0000950144-00-000092.hdr.sgml : 20000110 ACCESSION NUMBER: 0000950144-00-000092 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000107 EFFECTIVENESS DATE: 20000107 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FORWARD AIR CORP CENTRAL INDEX KEY: 0000912728 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 621120025 STATE OF INCORPORATION: TN FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-94249 FILM NUMBER: 503558 BUSINESS ADDRESS: STREET 1: 430 AIRPORT RD CITY: GREENEVILLE STATE: TN ZIP: 37745 BUSINESS PHONE: 4236367100 MAIL ADDRESS: STREET 1: P.O. BOX 1058 CITY: GREENEVILLE STATE: TN ZIP: 37744 FORMER COMPANY: FORMER CONFORMED NAME: LANDAIR SERVICES INC DATE OF NAME CHANGE: 19930928 S-8 1 FORWARD AIR CORPORATION 1 As Filed With the Securities and Exchange Commission on January 7, 2000 Registration No. 333-________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 FORWARD AIR CORPORATION (Exact name of Registrant as Specified in its Charter) TENNESSEE 62-1120025 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 430 AIRPORT ROAD 37745 GREENEVILLE, TENNESSEE (Zip Code) (Address of Principal Executive Offices) FORWARD AIR CORPORATION 1999 STOCK OPTION AND INCENTIVE PLAN (Full Title of the Plan) RICHARD H. ROBERTS SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY 430 AIRPORT ROAD GREENEVILLE, TENNESSEE 37745 (Name and Address of Agent for Service) (423) 636-7100 (Telephone Number, including Area Code, of Agent for Service) Copy to: LEIGH WALTON BASS, BERRY & SIMS PLC 2700 FIRST AMERICAN CENTER NASHVILLE, TENNESSEE 37238 CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------- Proposed maximum Proposed maximum Title of securities Amount to offering price aggregate offering Amount of to be registered be registered per share (1) price (1) registration fee =================================================================================================================== Common Stock, par value $.01 per share 1,000,000 $44.3125 $44,312,500 $11,698.50 - --------------------------------------------------------------------------------------------------------------------
(1) The offering price is estimated solely for the purpose of determining the amount of the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended, and is based on the average of the high and low prices per share of the Common Stock as reported on The Nasdaq National Market on January 5, 2000. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents previously filed by Forward Air Corporation (the "Registrant") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1998; (b) The Registrant's Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 1999, June 30, 1999 and September 30, 1999; (c) The Registrant's Current Reports on Form 8-K dated April 16, 1999 and May 28, 1999; and (d) The description of the Registrant's Common Stock, $.01 par value per share (the "Common Stock"), contained in the Registrant's Registration Statements on Form 8-A/A and Form 8-A dated October 5, 1993 and May 27, 1999, respectively, filed pursuant to Section 12(g) of the Exchange Act, as amended, including all amendments and reports filed for the purpose of updating such description prior to the termination of the offering of the Common Stock offered hereby. All documents and reports subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date hereof and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all shares covered hereby have been sold or which deregisters all such shares then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statements contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or replaced for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein) modifies or replaces such statement. Any statement so modified or replaced shall not be deemed, except as so modified or replaced, to constitute a part hereof. ITEM 4. DESCRIPTION OF SECURITIES Not applicable ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The validity of the shares of the Common Stock being offered hereby was passed on for the Registrant by Richard H. Roberts, Senior Vice President, General Counsel, Secretary and director of the Registrant. Mr. Roberts owned 35,334 shares of Common Stock as of December 31, 1999, held options to acquire 103,750 shares of Common Stock, of which 75,000 options are currently exercisable or will become exercisable in 60 days from such date, and, as of December 31, 1999, 1,154 shares of the Common Stock were attributable to his account under the Registrant's Employee Stock Purchase Plan. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Tennessee Business Corporation Act ("TBCA") 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, he reasonably believed such conduct was in the II-1 3 corporation's best interests; (c) in all other cases, he reasonably believed that his 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 his conduct was unlawful. In actions brought by or in the right of the corporation, however, the TBCA provides that no indemnification may be made if the director or officer was adjudged to be liable to the corporation. The TBCA 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 cases where the director or officer is wholly successful, on the merits or otherwise, in the defense of any proceeding instigated because of his or her status as a director or officer of a corporation, the TBCA mandates that the corporation indemnify the director or officer against reasonable expenses incurred in the proceeding. The TBCA provides that a court of competent jurisdiction, unless the corporation's charter provides otherwise, upon application, may order that an officer or director be indemnified for reasonable expenses if, in consideration of all relevant circumstances, the court determines that such individual is fairly and reasonably entitled to indemnification, notwithstanding the fact that (a) such officer or director was adjudged liable to the corporation in a proceeding by or in the right of the corporation; (b) such officer or director was adjudged liable on the basis that personal benefit was improperly received by him; or (c) such officer or director breached his duty of care to the corporation. The Registrant's Charter and Bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extent permitted by applicable law. The Registrant's Bylaws provide further that the Registrant shall advance expenses to each director and officer of the Registrant to the full extent allowed by the laws of the state of Tennessee, both as now in effect and as hereafter adopted. Under the Registrant's Charter and Bylaws, such indemnification and advancement of expenses provisions are not exclusive of any other right that a director or officer may have or acquire both as to action in his or her official capacity and as to action in another capacity. The Registrant believes that its Charter and Bylaw provisions are necessary to attract and retain qualified persons as directors and officers. The Registrant has in effect a directors' and officers' liability insurance policy which provides coverage for its directors and officers. Under this policy, the insurer agrees to pay, subject to certain exclusions, for any claim made against a director or officer of the Registrant for a wrongful act by such director or officer, but only if and to the extent such director or officer becomes legally obligated to pay such claim. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable ITEM 8. EXHIBITS See Exhibit Index (Page II-5) ITEM 9. UNDERTAKINGS A. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) 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 II-2 4 in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities would not exceed that which was registered) and any deviation from the low or high and 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 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) 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; 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 by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in the Registration Statement. (2) 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. (3) 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. B. 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 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. C. 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 of 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. II-3 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Greeneville, State of Tennessee, on the 7th day of January, 2000. FORWARD AIR CORPORATION By: /s/ Richard H. Roberts -------------------------------------- Richard H. Roberts Senior Vice President, General Counsel and Secretary KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below hereby constitutes and appoints Scott M. Niswonger and Richard H. Roberts his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, 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 and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, 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 by the following persons in the capacities and as of the dates indicated.
Signature Title Date --------- ----- ---- /s/ Scott M. Niswonger Chairman and Chief Executive Officer January 7, 2000 - ------------------------------- (Principal Executive Officer) Scott M. Niswonger /s/ Edward W. Cook Chief Financial Officer, Senior Vice January 7, 2000 - ------------------------------- President and Treasurer (Principal Edward W. Cook Financial and Accounting Officer) /s/ Bruce A. Campbell President, Chief Operating Officer and January 7, 2000 - ------------------------------- Director Bruce A. Campbell /s/ Richard H. Roberts Senior Vice President, General January 7, 2000 - ------------------------------- Counsel, Secretary and Director Richard H. Roberts /s/ James A. Cronin, III Director January 7, 2000 - ------------------------------- James A. Cronin, III /s/ Hon. Robert Keith Gray Director January 7, 2000 - ------------------------------- Hon. Robert Keith Gray
II-4 6 EXHIBIT INDEX
Exhibit No. Exhibit Description ---- ------------------- 4.1 Restated Charter of Forward Air Corporation (incorporated by reference to Exhibit 3 of the Registrant's Current Report on Form 8-K (filed with the Commission on May 28, 1999)) 4.2 Bylaws of Forward Air Corporation, as amended, (incorporated by reference to Exhibit 3.1 of the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1998 (filed with the Commission on November 16, 1998)) 4.3 Forward Air Corporation 1999 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1999 (filed with the Commission on May 17, 1999)) 4.4 Rights Agreement dated May 18, 1999 between Forward Air Corporation and SunTrust Bank, Atlanta, N.A., as Rights Agent, containing a description of the Rights to purchase Series A Junior Preferred Stock (incorporated by reference to Exhibit 4 of the Registrant's Current Report on Form 8-K (filed with the Commission on May 28, 1999)) 5 Opinion of Richard H. Roberts, Senior Vice President, General Counsel and Secretary 23.1 Consent of Richard H. Roberts, Senior Vice President, General Counsel and Secretary (included in Exhibit 5) 23.2 Consent of Ernst & Young LLP 24 Power of Attorney (included on page II-4)
II-5 EX-5 2 OPINION OF RICHARD H. ROBERTS 1 EXHIBIT 5 [FORWARD AIR CORPORATION LOGO] January 7, 2000 The Board of Directors of Forward Air Corporation 430 Airport Road Greeneville, Tennessee 37745 Re: Registration Statement on Form S-8 Ladies and Gentlemen: I have acted as your counsel in the preparation of a registration statement on Form S-8 (the "Registration Statement") relating to the Company's 1999 Stock Option and Incentive Plan (the "Plan"), filed by you with the Securities and Exchange Commission covering 1,000,000 shares (the "Shares") of $0.01 par value common stock of the Company issuable pursuant to the Plan. In so acting, I have examined and relied upon such records, documents and other instruments as in my judgment are necessary or appropriate in order to express the opinion hereinafter set forth and have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals and the conformity to the original documents of all documents submitted to me as certified or photostatic copies. Based on the foregoing, I am of the opinion that the Shares, when issued pursuant to and in accordance with the Plan, will be validly issued, fully paid, and nonassessable. I hereby consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Richard H. Roberts Senior Vice President, General Counsel and Secretary EX-23.2 3 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Forward Air Corporation 1999 Stock Option and Incentive Plan of our report dated February 2, 1999 except for Note 13 as to which the date is February 24, 1999, with respect to the consolidated financial statements and schedule of Forward Air Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the Securities and Exchange Commission. Ernst & Young LLP Nashville, Tennessee January 04, 2000 -----END PRIVACY-ENHANCED MESSAGE-----