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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
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
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
===================================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 per share 1,000,000 $44.3125 $44,312,500 $11,698.50
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
(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.
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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
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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
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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.
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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.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/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
</TABLE>
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EXHIBIT INDEX
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<CAPTION>
Exhibit
No. Exhibit Description
---- -------------------
<S> <C>
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)
</TABLE>
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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
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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
