United States securities and exchange commission logo
April 26, 2024
Michael L. Hance
Interim Chief Executive Officer
Forward Air Corporation
1915 Snapps Ferry Road, Building N
Greeneville, TN 37745
Re: Forward Air
Corporation
Preliminary Proxy
Statement on Schedule 14A
Filed April 12,
2024
File No. 000-22490
Dear Michael L. Hance:
We have reviewed your
filing and have the following comments.
Please respond to this letter within ten business days by
providing the requested
information or advise us as soon as possible when you will respond. If
you do not believe a
comment applies to your facts and circumstances, please tell us why in
your response.
After reviewing your
response to this letter, we may have additional comments.
Preliminary Proxy Statement on Schedule 14A
Proposal 1 - Nasdaq Conversion Proposal, page 6
1. We note that if the
Nasdaq Conversion Proposal is approved, you plan to issue shares of
Company Common Stock
upon the conversion of the outstanding Company Series C
Preferred Units that
were issued in connection with the Omni Acquisition and fractional
units of Company Series
B Preferred Stock upon the conversion of Opco Series C-2
Preferred Units that
were issued in connection with the Omni Acquisition into Opco Class
B Units, and Company
Common Stock upon the exchange of such fractional units of
Company Series B
Preferred Stock. Please advise us of the exemption from the Securities
Act that you are
relying upon and provide an analysis supporting the use of such
exemption.
2. We note that you are
seeking the approval of the issuance of 5,135,008 shares of
Company Common Stock on
as as-converted and as-exchanged basis and Convertible
Preferred Equity
Consideration, which represents an additional 8,880,010 shares of
Company Common Stock on
an as-converted and as-exchanged basis. Given that this
proposal involves a
solicitation of shareholders for the purpose of approving the issuance
Michael L. Hance
Forward Air Corporation
April 26, 2024
Page 2
of additional securities that are issuable in connection with the Omni
Acquisition, and
your shareholders will not have a separate opportunity to vote on this
transaction, please
revise your disclosure to include the information required pursuant to
Note A of Schedule
14A, including the information set forth in Items 13 and 14 of Schedule
14A. See
also Question 151.02 of Proxy Rules and Schedule 14A/14C Compliance and
Disclosure
Interpretations.
General
3. We note you disclose in your Annual Report on Form 10-K that the
September 26, 2023
Shareholder Complaint filed against the Company by Rodney Bell, Michael
A. Robert and
Theresa Woods alleges, among other things, that your shareholders have
the right to vote
on certain transactions contemplated by the Merger Agreement and sought
an injunction
against the consummation of the transaction until a shareholder vote was
held, and while
the temporary restraining order was dissolved on October 25, 2023 and the
transaction
was completed on January 25, 2024, the case remains pending. Please
revise your
disclosure to discuss the impact of the pending shareholder litigation on
the Omni
Acquisition and related transactions, and on the shareholder vote
solicited in this proxy
statement with respect to the Nasdaq Conversion Proposal.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Please contact Michael Purcell at 202-551-5351 or Irene
Barberena-Meissner at 202-551-
6548 with any questions.
Sincerely,
FirstName LastNameMichael L. Hance
Division of
Corporation Finance
Comapany NameForward Air Corporation
Office of Energy &
Transportation
April 26, 2024 Page 2
cc: Flora Perez
FirstName LastName