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FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
FORWARD AIR CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Tennessee 62-1120025
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
430 Airport Road, Greeneville, Tennessee 37745
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(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. [X]
Securities Act registration statement file number to which this form relates:
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(If applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
Series A Junior Preferred Stock Purchase Rights
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(Title of class)
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Item 1. Description of Registrant's Securities to be Registered
On May 18, 1999, the Board of Directors of Forward Air Corporation (the
"Company") declared a distribution of one stock purchase right (a "Right") for
each outstanding share of the common stock of the Company, par value $.01 per
share (the "Company Common Stock"), to shareholders of record at the close of
business on June 1, 1999 and for each share of Company Common Stock issued by
the Company thereafter and prior to the Distribution Date (as hereinafter
defined). Each Right entitles the registered holder, subject to the terms of the
Rights Agreement (the "Rights Agreement"), dated May 18, 1999, between the
Company and SunTrust Bank, Atlanta, N.A., as Rights Agent, to purchase from the
Company one one-hundredth of a share (a "Unit") of Series A Junior Preferred
Stock, par value $.01 per share (the "Preferred Stock"), at a purchase price of
$110.00 per Unit (the "Purchase Price"), subject to adjustment. The Purchase
Price is payable in cash or by certified or bank check or bank draft payable to
the order of the Company. The description and terms of the Rights are set forth
in the Rights Agreement.
Initially, the Rights will attach to all certificates representing
shares of outstanding Company Common Stock, and no separate Rights Certificates
will be distributed. The Rights will separate from the Company Common Stock, and
the Distribution Date will occur, upon the earlier of (i) ten days following a
public announcement (the date of such announcement being the "Stock Acquisition
Date") that a person or group of affiliated or associated persons (other than
the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or any such Subsidiary, or Scott M. Niswonger) (an "Acquiring Person"),
subject to certain exceptions described in the Rights Agreement, has acquired,
obtained the right to acquire, or otherwise obtained beneficial ownership of 15%
or more of the then outstanding shares of Company Common Stock, or (ii) ten days
(or such later date as may be determined by the Board of Directors prior to such
time as any person becomes an Acquiring Person) following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning 15% or more of the then outstanding shares of Company Common
Stock. Until the Distribution Date, (i) the Rights will be evidenced by Company
Common Stock certificates and will be transferred with and only with such
Company Common Stock certificates; (ii) new Company Common Stock certificates
issued after June 1, 1999 will contain a notation incorporating the Rights
Agreement by reference; and (iii) the surrender for transfer of any certificates
representing outstanding Company Common Stock will also constitute the transfer
of the Rights associated with the Company Common Stock represented by such
certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on the tenth anniversary of the Rights Agreement
unless earlier redeemed by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Company Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights.
Upon the occurrence of a Distribution Date, each holder of a Right will
thereafter have the right to receive, upon exercise, shares of Company Common
Stock (or, in certain circumstances, at
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the discretion of the Company's Board of Directors, cash, property, other
securities of the Company, or other consideration) having a value equal to two
times the Purchase Price of the Right. The Purchase Price is the then current
Purchase Price multiplied by the number of Units of Preferred Stock issuable
upon exercise of a Right prior to the events described in this paragraph.
Notwithstanding any of the foregoing, following the occurrence of a Distribution
Date, all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will be null
and void.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company is acquired in a merger or other business combination
transaction and the Company is not the surviving corporation, (ii) any Person
effects a share exchange or merges with the Company and all or part of the
Company Common Stock is converted or exchanged for securities, cash or property
of any other Person, or (iii) 50% or more of the Company's assets or earning
power is sold or transferred, each holder of a Right (except Rights that
previously have been voided as described above) shall thereafter have the right
to receive, upon exercise, common stock of the Acquiring Person having a value
equal to two times the Purchase Price of the Right.
The Purchase Price payable, and the number of shares of Company Common
Stock issuable, upon exercise of the Rights are subject to adjustment from time
to time to prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination, or reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less than the current
market price of the Preferred Stock, or (iii) upon the distribution to the
holders of the Preferred Stock of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants (other
than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. The Company is not required to issue fractional Units. In lieu thereof,
an adjustment in cash may be made based on the fair market value of the
Preferred Stock prior to the date of exercise.
At any time through ten days following the Stock Acquisition Date, the
Board of Directors may redeem the Rights in whole, but not in part, at a price
of $0.001 per Right (the "Redemption Price"), payable, at the election of the
Board of Directors, in cash or shares of Company Common Stock. Immediately upon
the action of the Board of Directors ordering the redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
At any time after any person becomes an Acquiring Person, the Board of
Directors may exchange the Rights (other than Rights owned by such Acquiring
Person that have become void), in whole or in part, at an exchange ratio of one
share of Company Common Stock per right. Notwithstanding the foregoing, the
Board of Directors shall not be empowered to effect such exchange at any time
after such Acquiring Person becomes the beneficial owner of 50% or more of the
shares of Company Common Stock then outstanding.
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Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to shareholders or to the Company, shareholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Units of Preferred Stock (or other consideration).
Any of the provisions of the Rights Agreement may be supplemented or
amended at any time prior to the Distribution Date without the consent of the
holders of the Rights. After the Distribution Date, the provisions of the Rights
Agreement may be supplemented or amended without the consent of the holders of
the Rights in order to cure any ambiguity, defect or inconsistency, to make
changes that are consistent with the objectives of the Board of Directors in
adopting the Rights Agreement, except that from and after such time as any
person becomes an Acquiring Person, no such amendment may adversely affect the
interests of holders of Rights, or to shorten or lengthen any time period under
the Rights Agreement; provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time as the Rights are not
redeemable.
As of May 18, 1999, 13,682,073 shares of Company Common Stock were
issued and outstanding. Each outstanding share of Company Common Stock on June
1, 1999 will receive one Right. As long as the Rights are attached to the
Company Common Stock, the Company will issue one Right for each share of Company
Common Stock issued between the Record Date and the Distribution Date. A total
of 500,000 shares of Preferred Stock have been reserved for issuance upon
exercise of the Rights, subject to adjustment.
The Units of Preferred Stock that may be acquired upon exercise of the
Rights will be nonredeemable and subordinate to any other shares of preferred
stock that may be issued by the Company.
Each Unit of Preferred Stock will be entitled to receive, when, as and
if declared, dividends at the same rate as dividends are paid with respect to
the Common Stock.
In the event of liquidation, the holder of a Unit of Preferred Stock
will be entitled to share in any assets remaining ratably with the holders of
the Common Stock.
Each Unit of Preferred Stock will have one vote, voting together with
the Company Common Stock.
In the event of any merger, share exchange or other transaction in
which shares of Company Common Stock are exchanged, each Unit of Preferred Stock
will be entitled to receive the per share amount paid in respect of each share
of Company Common Stock.
The rights of holders of the Preferred Stock to dividends, liquidation
and voting, and in the event of mergers and share exchanges, are protected by
customary antidilution provisions.
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Because of the nature of the Preferred Stock's dividend, liquidation
and voting rights, the economic value of one Unit of Preferred Stock that may be
acquired upon the exercise of each Right should approximate the economic value
of one share of Company Common Stock.
The Rights may have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire the
Company on terms not approved by a majority of the Board of Directors unless the
offer is conditioned on a substantial number of Rights being acquired. However,
the Rights should not interfere with any merger or other business combination
approved by the Board of Directors since the Rights may be redeemed by the
Company at $0.001 per Right at any time on or prior to the tenth day following
the Stock Acquisition Date. Thus, the Rights are intended to encourage persons
who may seek to acquire control of the Company to initiate such an acquisition
through negotiations with the Board of Directors. However, the effect of the
Rights may be to discourage a third party from making a partial tender offer or
otherwise attempting to obtain a substantial equity position in the equity
securities of, or seeking to obtain control of, the Company. To the extent any
potential acquirors are deterred by the Rights, the Rights may have the effect
of preserving incumbent management in office.
The Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit A the Form of
Rights Certificate and as Exhibit B the Form of Summary of Rights, is filed as
Exhibit 1 and is incorporated herein by reference. The foregoing description of
the Rights does not purport to be complete and is qualified in its entirety by
reference to such Exhibit.
Item 2. Exhibits
1. Rights Agreement, dated May 18, 1999, between Forward Air
Corporation and SunTrust Bank, Atlanta, N.A., including the
Form of Rights Certificate (Exhibit A) and the Form of Summary
of Rights (Exhibit B) is incorporated herein by reference to
Exhibit 4 to the Company's Current Report on Form 8-K filed
with the Securities and Exchange Commission on May 28, 1999.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
FORWARD AIR CORPORATION
By: /s/ Richard H. Roberts
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Name: Richard H. Roberts
Title: Senior Vice President and
General Counsel
Dated: May 27, 1999
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EXHIBIT INDEX
1. Rights Agreement, dated May 18, 1999, between Forward Air Corporation
and SunTrust Bank, Atlanta, N.A., including the Form of Rights
Certificate (Exhibit A) and the Form of Summary of Rights (Exhibit B)
is incorporated herein by reference to Exhibit 4 to the Company's
Current Report on Form 8-K filed with the Securities and Exchange
Commission on May 28, 1999.
