UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
☑ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 2023
Commission file number: 000-22490
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File No. 000-22490
FORWARD AIR CORPORATION
(Exact name of Registrant as specified in its charter)
Tennessee
(State or other jurisdiction of incorporation or organization)
62-1120025
(I.R.S. Employer Identification No.)
1915 Snapps Ferry Road
Building N
Greeneville
TN
(Address of principal executive offices)
37745
(Zip Code)
(423) 636-7000
Registrant’s telephone number, including area code
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class
Common Stock, $0.01 par value
Trading Symbol(s)
FWRD
Name of Each Exchange on Which Registered
The Nasdaq Stock Market LLC
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes þ No o
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes o No þ
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T during the preceding 12
months (or for such shorter period that the registrant was required to submit such files). Yes þ No o
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
☑ Accelerated filer
☐ Non-accelerated filer
☐ Smaller reporting Company
☐ Emerging Growth Company
☐
If an emerging growth company, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management's assessment of the effectiveness of its internal control over financial reporting under
Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☑
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the Registrant included in the filing reflect the correction of an error
to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive-based compensation received by any of the Registrant's executive
officers during the relevant recovery period pursuant to §240.10D.1(b). ☐
Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☑
The aggregate market value of the voting stock held by non-affiliates of the Registrant was approximately $ 1,979,790,128 as of June 30, 2023.
The number of shares outstanding of the Registrant’s common s tock (as of March 12, 2024): 26,370,370.
Portions of the proxy statement for the 2024 Annual Meeting of Shareholders are incorporated by reference into Part III of this report.
Documents Incorporated By Reference
Table of Contents
Forward Air Corporation
Item 1.
Part I.
Business
Item 1A.
Risk Factors
Item 1B.
Unresolved Staff Comments
Item 1C.
Item 2.
Cybersecurity
Properties
Item 3.
Legal Proceedings
Item 4.
Mine Safety Disclosures
Part II.
Item 5.
Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities
Item 6.
[Reserved]
Item 7.
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Item 7A.
Quantitative and Qualitative Disclosures About Market Risk
Item 8.
Financial Statements and Supplementary Data
Item 9.
Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
Item 9A.
Controls and Procedures
Item 9B.
Other Information
Item 9C.
Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Part III.
Item 10.
Directors, Executive Officers and Corporate Governance
Item 11.
Executive Compensation
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters
Item 13.
Certain Relationships and Related Transactions, and Director Independence
Item 14.
Principal Accounting Fees and Services
Part IV.
Item 15.
Exhibits, Financial Statement Schedules
Exhibit Index
Signatures
Index to Financial Statements
Financial Statement Schedule
2
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F-2
S-1
Cautionary Note Regarding Forward-Looking Statements
Part I
This Annual Report on Form 10-K for the fiscal year ended December 31, 2023 (this “Form 10-K”) contains
“forward-looking statements,” as defined in Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). Forward-looking statements are statements other than historical information or statements of current condition and relate to future
events or our future financial performance. Some forward-looking statements may be identified by use of such terms as “believes,” “anticipates,” “intends,” “plans,”
“estimates,” “projects” or “expects.”
In this Form 10-K, forward-looking statements include, but are not limited to, any statements regarding any projections of earnings, revenues, payment of dividends,
other financial items or related accounting treatment, or cost reduction measures; any statements regarding future performance; any statements regarding the availability of
cash; any statements regarding the impact of the Ransomware Incident on our business, future operations and results; any statements of plans, strategies, and objectives of
management for future operations; any statements regarding future insurance, claims and litigation and any associated estimates or projections operations, including our
strategy to expand service offerings and terminal footprint; any statements regarding our commitment to accelerate expansion, both domestically and internationally; any
statements regarding the impact of regulations, economic sanctions or legislation on our business; any statements regarding an increase in the cost of new equipment; any
statements concerning proposed or intended, new services, developments or integration measures; any statements regarding our technology and information systems, including
the effectiveness of each; any statements regarding competition, including our specific advantages, the capabilities of our segments, including the integration of services and
our geographic location; any statement regarding our properties; any statements regarding intended expansion through acquisition or greenfield startups; any statements
regarding future business, economic conditions or performance; any statements regarding our ESG and sustainability initiatives, initiatives, including any partnerships that we
enter into in connection with our goals; any statement regarding certain tax and accounting matters, including the impact on our financial statements; any statements regarding
our ability to achieve the intended benefits of the acquisition of Omni Newco LLC (the “Omni Acquisition”), including cost and revenue synergies; any statements regarding
any payments that we will be required to make to Omni Holders, any statements regarding our substantial indebtedness, including our ability to service our debt; any statements
regarding our ongoing commitment to cybersecurity; any statements regarding our expectations of freight volumes, and any impact on rates; any statement regarding the
impact and implementation of disclosure control systems; and any statements of belief and any statements of assumptions underlying any of the foregoing.
These forward-looking statements are subject to a number of known and unknown risks, uncertainties and assumptions, including those described in “Risk Factors”
below. In light of these risks, uncertainties and assumptions, the forward-looking events and circumstances discussed in this Form 10-K may not occur, and actual results could
differ materially and adversely from those anticipated or implied in the forward-looking statements. Important factors that may materially affect the forward-looking statements
include the risk factors summarized below.
The factors identified below are believed to be important factors, but not necessarily all of the important factors, that could cause actual results to differ materially
from those expressed in any forward-looking statement made by us. Other factors not discussed herein could also have a material adverse effect on us. You should not rely upon
forward-looking statements as predictions of future events. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot
guarantee future results, level of activity, performance or achievements. These forward-looking statements speak only as of the date of this Form 10-K. We assume no
obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future, except as required by applicable law.
3
The following is a list of factors, among others, that could cause actual results to differ materially from those contemplated by the forward-looking statements:
economic factors such as recessions, inflation, higher interest rates and downturns in customer business cycles, our ability to manage our growth and ability to grow, in part,
through acquisitions, our ability to achieve the expected strategic, financial and other benefits of the Omni Acquisition, including the realization of expected synergies and the
achievement of deleveraging targets, within the expected time-frames or at all, our ability to secure terminal facilities in desirable locations at reasonable rates, more limited
liquidity than expected which limits our ability to make key investments, the creditworthiness of our customers and their ability to pay for services rendered, our inability to
maintain our historical growth rate because of a decreased volume of freight or decreased average revenue per pound of freight moving through our network, the availability
and compensation of qualified Leased Capacity Providers and freight handlers as well as contracted, third-party motor carriers needed to serve our customers’ transportation
needs, our inability to manage our information systems and inability of our information systems to handle an increased volume of freight moving through our network, the
occurrence of cybersecurity risks and events, market acceptance of our service offerings, claims for property damage, personal injuries or workers’ compensation, enforcement
of and changes in governmental regulations, environmental, tax, insurance and accounting matters, the handling of hazardous materials, changes in fuel prices, loss of a major
customer, increasing competition and pricing pressure, our dependence on our senior management team and the potential effects of changes in employee status, seasonal
trends, the occurrence of certain weather events, restrictions in our charter and bylaws, the cost of new equipment and the impact and efficacy of our disclosure controls and
procedures. As a result of the foregoing, no assurance can be given as to future financial condition, cash flows or results of operations. Except as required by law, we
undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
4
Summary of Risk Factors
The following is a summary of the principal risks described below in “Item 1A. Risk Factors” in this Annual Report on Form 10-K. We believe that the risks described
in the “Risk Factors” section are material to investors, but other factors not presently known to us or that we currently believe are immaterial may also adversely affect us. The
following summary should not be considered an exhaustive summary of the material risks facing us, and it should be read in conjunction with the “Risk Factors” section and
the other information contained in this Annual Report on Form 10-K.
Risks Relating to Our Business and Operations
•
•
•
•
•
Overall economic conditions that reduce freight volumes could adversely affect our operating results and growth.
Inflation may increase our operating expenses and lower profitability.
Volatility in fuel prices, shortages of fuel or the ineffectiveness of our fuel surcharge program could have a material adverse effect on our results of operations and
profitability.
If we have difficulty attracting and retaining Leased Capacity Providers, other third-party transportation capacity providers, or freight handlers, our profitability and
results of operations could be adversely affected.
Because a portion of our network costs are fixed, any factors that result in a decrease in the volume or revenue per pound of freight shipped through our networks will
adversely affect our results of operations.
Our profitability could be negatively impacted if our pricing structure proves to be inaccurate or off-market.
•
• We derive a significant portion of our revenue from a few major customers, the loss of one or more of which could have a material adverse effect on our business.
• We are dependent on our senior management team and other key employees, and the loss of any such personnel could
• materially and adversely affect our business, operating results and financial condition.
•
•
•
• We could be required to record a material non-cash charge to income if our recorded intangible assets or goodwill are
•
• We operate in highly competitive and fragmented segments of our industry, and our business will suffer if we are unable to adequately address downward pricing
Our business is subject to seasonal trends.
Our results of operations may be affected by harsh weather conditions, disasters and pandemics.
Labor shortages and increased turnover or increases in employee and employee-related costs could adversely affect our ability to attract and retain qualified employees.
determined to be impaired.
•
•
•
•
•
•
pressures and other factors that affect our business.
Difficulty in forecasting timing or volumes of customer shipments could adversely impact our margins and operating results and lead to difficulties in predicting
liquidity.
Higher prices by Leased Capacity Providers and other third-party transportation capacity providers could adversely impact the combined company’s margins and
operating results.
The combined company’s international operations subject us to operational and financial risks.
Our increased direct sales efforts could be viewed as a competitive threat by our domestic forwarder customers.
Reductions in the available supply or increases in costs may adversely impact our profitability and cash flows.
Because our Intermodal business depends heavily on freight transiting seaports and railheads, our operating results and financial condition are likely to be adversely
affected by any reduction or deterioration in service.
• We may have difficulty effectively managing our growth, which could adversely affect our business.
• We may not make future acquisitions or, if we do, we may not realize the anticipated benefits of future acquisitions and integration of these acquisitions may disrupt our
business and occupy management.
5
Risks Relating to Omni Acquisition
•
•
The Omni Acquisition may not achieve its intended benefits, and certain difficulties, costs or expenses may outweigh such intended benefits.
Our Up-C structure places significant limitations on our cash flow because our principal asset is our interest in Opco, and, accordingly, we depend on distributions from
Opco to pay our taxes and expenses, including payments under the Tax Receivable Agreement.
Failure to attract, motivate and retain executives and other key employees could diminish the anticipated benefits of the Omni Acquisition.
•
• We may not be able to retain customers or suppliers, or customers or suppliers may seek to modify contractual obligations with us, which could have an adverse effect
•
•
•
•
•
•
on the combined company’s business and operations.
Each of the Company and Omni will incur significant transaction, merger-related and integration costs.
Significant demands will be placed on the Company and Omni as a result of the Omni Acquisition.
Following the announcement of the Omni Acquisition, the price of our common stock decreased significantly. Continued downward pressure on our stock price may
increase the risk of shareholder litigation and shareholder activism, which could divert management’s attention and resources.
Omni Holders are a significant holder of our common stock following completion of the Omni Acquisition.
The unaudited pro forma financial data included in the September 8-K is preliminary and does not reflect the changes as a result of the Amended Merger Agreement. The
combined company’s actual financial position and results of operations may differ materially from the previously disclosed unaudited pro forma financial data.
Prior to the Omni Acquisition, Omni was a privately-held company and its new obligations of being a part of a public company may require significant resources and
management attention.
• We will be required to pay Omni Holders for certain tax savings we may realize, and we expect that the payments we will be required to make may be substantial.
• We may not have discovered undisclosed liabilities of Omni, if any.
Risks Relating to our Indebtedness
•
•
•
Our substantial indebtedness could adversely affect our financial health and our business strategy.
The instruments governing our indebtedness impose certain restrictions on our business.
Servicing our debt requires a significant amount of cash, and we may not have sufficient cash flow.
Risks Relating to Information Technology and Systems
•
•
•
If we fail to maintain our information technology systems, or if we fail to successfully implement new technology or enhancements, we may be at a competitive
disadvantage and experience a decrease in revenues.
Our business is subject to cybersecurity risks.
Issues related to the intellectual property rights could materially, adversely affect our business.
6
Risks Relating Regulatory Environment
•
A determination by regulators that our Leased Capacity Providers or third-party motor carriers are employees rather than independent contractors could expose us to
various liabilities and additional ongoing expenses.
Claims for property damage, personal injuries or workers’ compensation could significantly reduce our earnings.
•
• We face risks related to self-insurance and third-party insurance that can be volatile to our earnings.
•
Our failure to comply with various applicable federal and state employment and labor laws and regulations could have a material, adverse impact on our business,
financial condition and results of operations.
• We operate in a regulated industry, and increased costs of compliance with, or liability for violation of, existing or future regulations and enforcement could have a
•
material adverse effect on our business.
The FMCSA’s CSA and SMS initiatives could adversely impact our ability to hire qualified drivers or contract with qualified Leased Capacity Providers or third-party
motor carriers, meet our growth projections and maintain our customer relationships, each of which could adversely impact our results of operations.
• We are subject to various environmental laws and regulations; and costs of compliance with, or liabilities for violations of, existing or future laws and regulations could
significantly increase our costs of doing business.
•
Risks and requirements related to transacting business in foreign countries may result in increased liabilities, including penalties and fines as well as reputational harm.
• We may be subject to governmental export and import controls that could impair its ability to compete in international markets and subject it to liability if it violates such
controls.
If our employees were to unionize, our operating costs would likely increase.
Our charter and bylaws and provisions of Tennessee law could discourage or prevent a takeover.
•
•
7
Item 1. Business
Overview
Part I
Forward Air Corporation (“Forward”, the “Company”, “we”, “our”, or “us”) is a leading asset-light freight and logistics company. We provide less-than-truckload
(“LTL”), truckload and intermodal drayage services across the United States and in Canada and Mexico. We offer premium services that typically require precision execution,
such as expedited transit, delivery during tight time windows and special handling. We utilize an asset-light strategy to minimize our investments in equipment and facilities and
to reduce our capital expenditures. Forward Air was formed as a corporation under the laws of the State of Tennessee on October 23, 1981. Our common stock is listed on the
Nasdaq Global Select Market under the symbol “FWRD”.
Discontinued Operations
In December 2023, our Board of Directors approved a strategy to divest of the Final Mile business (“Final Mile”), and the sale of Final Mile was completed on
December 20, 2023. Final Mile provided delivery and installation of heavy bulky appliances such as washing machines, dryers, dishwashers and refrigerators throughout the
United States. As a result of the divestiture of the Final Mile business, the results of operations for Final Mile are presented as a discontinued operation in our Consolidated
Statements of Comprehensive Income for all periods presented and all assets and liabilities were reflected as “Assets and liabilities held for sale” in our Consolidated Balance
Sheets for the prior period.
On April 23, 2020, we made a decision to divest of Pool and the sale was completed on February 12, 2021. As a result, the results of Pool were classified to “Loss from
discontinued operation, net of tax” in our Consolidated Statements of Comprehensive Income for the year ended December 31, 2021. Certain corporate overhead and other costs
previously allocated to Pool for segment reporting purposes did not qualify for classification within discontinued operation and were allocated to continuing operations.
Omni Acquisition
As described in “Item 7 – Management’s Discussion and Analysis of Financial Condition and Results of Operations – Omni Acquisition”, on January 25, 2024 (the
“Closing Date”), we completed the acquisition of Omni Newco LLC (“Omni”) pursuant to the Agreement and Plan of Merger, dated as of August 10, 2023 (the “Merger
Agreement”, and as amended by Amendment No. 1, dated as of January 22, 2024, the “Amended Merger Agreement”) (the “Omni Acquisition”). This acquisition and the
related debt are discussed in detail within Note 3, Acquisitions to our Consolidated Financial Statements included in this Form 10-K.
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 (“B2B”) 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.
Core Offerings
Omni focuses on providing customized logistics solutions for high-value, mission-critical freight for some of the industry’s most demanding customers. Its core offerings
include:
•
Value-Added Warehousing and Distribution
◦
◦
◦
Global warehousing and distribution and e-commerce fulfillment solutions, including inventory management, cross docking, kitting and pick and pack; and
Free Trade zone and bonded warehouse capabilities;
System level testing, tape and reel, ink/laser marking, repair, splitting, baking, kitting, packing, binning and returns management.
8
•
•
International Freight
◦
◦
Primarily focused on Asia to the United States and Intra-Asia air transportation; and
International compliance and customs brokerage ensure stringent compliance requirements are met while expediting delivery times.
Domestic Freight
◦
◦
◦
◦
◦
◦
Partnering with leading carriers to provide a full menu of less-than-truckload (“LTL”), expedited and truckload services based on various time requirements;
Specialized delivery for high-value freight, including white glove and team delivery, installation, unpacking, debris removal, light assembly, repackaging,
inspection and crating/uncrating;
Supply chain engineering, appointment scheduling, site survey, track and trace, 24-hour call center and database management;
Air charter, next flight out, hand carry and other expedited services;
Reverse logistics, tradeshows, project logistics, cold chain management, chain of custody and small pack; and
Internal linehaul network provides a competitive advantage in the middle mile through cost and service quality controls.
Customer and Go-To Market Strategy
Omni’s sales force is focused on servicing the global supply chain of United States-based customers with support from a centralized solutions team with cross-functional
expertise dedicated to supporting the salespeople in global multi-modal supply chain solutions. Omni deploys global, multi-modal capabilities, which allows the salespeople to
partner across customers’ organizations and supply chains by offering a comprehensive suite of global services.
Services Provided
Our services are classified into two reportable segments: Expedited Freight and Intermodal. For financial information relating to each of our business segments, see
Note 12, Segment Reporting to our Consolidated Financial Statements included in this Form 10-K.
Expedited Freight. We operate a comprehensive national network that provides expedited regional, inter-regional and national LTL services. Expedited Freight offers
customers local pick-up and delivery and other services including truckload, shipment consolidation and deconsolidation, warehousing, customs brokerage and other handling
services. We have, and plan to continue to grow our LTL geographic footprint through greenfield start-ups as well as acquisitions. During the year ended December 31, 2023,
Expedited Freight accounted for 80.0% of our consolidated revenue.
Intermodal. We provide first- and last-mile high value intermodal container drayage services both to and from seaports and railheads. Intermodal also offers dedicated
contract and Container Freight Station (“CFS”) warehouse and handling services. Intermodal operates primarily in the Midwest and Southeast, with a smaller operational
presence in the Southwest, Mid-Atlantic, and West Coast. We have, and plan to grow Intermodal’s geographic footprint through greenfield start-ups where we do not have an
acceptable acquisition target, as well as acquisitions. During the year ended December 31, 2023, Intermodal accounted for 20.0% of our consolidated revenue.
Strategy
Our strategy is to take advantage of our core competencies in precision execution to provide asset-light freight and logistics services to profitably grow in the premium
segments of the markets we serve. Principal components of our efforts include:
•
Expand Service Offerings and Terminal Footprint. A key part of our growth strategy is to offer new and enhanced services that address our customers’ premium
transportation needs. Over the past few years, we added or enhanced LTL pickup and delivery, expedited truckload, temperature-controlled shipments,
warehousing, drayage, customs brokerage and shipment consolidation and handling services. These services benefit our existing customers and increase our ability
to attract new customers. Another part of our key growth strategy is to pursue geographic expansion in under penetrated markets to better meet the current and
future needs of customers. As a result, we plan to invest in new terminals, in our trailer fleet and technology to enable us to efficiently handle the increased freight
in the new markets.
9
• Manage Pricing and Freight Characteristics. Our business strategy involves managing both the price we charge for our services and the mix of freight we transport
to operate our LTL network efficiently and more profitably. Over the past several years, we have implemented initiatives to improve the freight characteristics in
our LTL network that has allowed us to increase our yield and revenue per shipment.
Continue to Focus on Delivering Best-in-Class Service. The foundation of our growth strategy is our commitment to provide our customers with the most reliable
and damage-free alternative for their shipments. Commitment to precision execution service is valued by customers and allows us to charge fair compensation for
our services and positions us to improve market share.
Pursue Strategic Acquisitions. We continue to evaluate and pursue acquisitions that help expand geographic reach while gaining the business base of the acquired
entity. In 2014 we created the foundation for what is our Intermodal segment by acquiring Central States Trucking Co. (“CST”). Since the acquisition of CST, we
have completed fifteen additional intermodal acquisitions. In May 2021, we acquired J&P Hall Express Delivery to expand the expedited LTL footprint across the
Southeast. In January 2023, we acquired Land Air Express to accelerate the expedited LTL footprint expansion in the middle part of the United States. On January
25, 2024, shortly after the fiscal year end of this report, we completed the Omni Acquisition which will allow us to expand our operations both domestically and
internationally.
Enhance Information Systems. We are committed to the development and enhancement of our information systems to provide competitive service advantages and
increased productivity. We believe our information systems have and will assist us in capitalizing on new business opportunities with existing and new customers.
•
•
•
Operations
The following describes in more detail the operations of each of our reportable segments: Expedited Freight and Intermodal.
Expedited Freight
Overview
Our Expedited Freight segment provides expedited regional, inter-regional and national LTL and truckload services. We market our Expedited Freight services
primarily to freight and logistics intermediaries (such as freight forwarders and third-party logistics companies), and airlines (such as integrated air cargo carriers, and passenger
and cargo airlines). We offer our customers a high level of service with a focus on on-time, damage-free deliveries. Our Expedited Freight network encompasses
approximately 92% of all continental United States zip codes, with service in Canada and Mexico.
Shipments
During 2023, approximately 30% of the freight handled by our LTL network was for overnight delivery, approximately 58% was for delivery within two to three days
and the balance was for delivery in four or more days.
The average weekly volume of freight moving through our LTL network was approximately 52.7 million pounds per week and our average shipment weighed
approximately 802 pounds in 2023. Although we impose no significant size or weight restrictions, we focus our marketing and price structure on shipments of 200 p ounds or
more.
Expedited Freight markets its services primarily to freight and logistics intermediaries; however, it may at times, provide such services to shippers if the opportunity is
consistent with Expedited Freight’s strategy. Also, because Expedited Freight does not place significant size or weight restrictions on shipments, we generally do not compete
directly with integrated air cargo carriers such as United Parcel Service and FedEx Corporation in the overnight delivery of small parcels.
10
The table below summarizes the average weekly volume of freight moving through our LTL network for each year since 2009.
Average Weekly
Volume in Pounds
(In millions)
28.5
32.6
34.0
34.9
35.4
37.4
47.2
46.5
49.5
50.2
48.6
46.3
55.4
54.8
52.7
Year
2009
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
2020
2021
2022
2023
Transportation
Expedited Freight secures transportation capacity from four sources:
•
•
•
•
independent contractors that own and lease their equipment (primarily tractors) to the Company (“Leased Capacity Providers”);
third-party contracted motor carriers;
capacity secured by transportation intermediaries, including freight brokers; and
Company-owned equipment operated by employee drivers.
The majority of the transportation capacity utilized by Expedited Freight is provided by Leased Capacity Providers, with whom we seek to establish long-term
relationships to assure dependable service and availability. We believe Expedited Freight has experienced significantly higher average retention of Leased Capacity Providers
compared to other over-the-road transportation providers. Expedited Freight has established specific guidelines relating to safety records, driving experience and personal
evaluations that we use to select our Leased Capacity Providers. To enhance our relationship with the Leased Capacity Providers, Expedited Freight seeks to pay rates that are
generally above prevailing market rates, and our Leased Capacity Providers often are able to negotiate a consistent work schedule for their drivers. Usually, Leased Capacity
Providers negotiate schedules for their drivers that are between the same two cities or along a consistent route, improving quality of work life for the drivers of our Leased
Capacity Providers and, in turn, increasing the retention rate of drivers and Leased Capacity Providers.
We also purchase transportation capacity supplied by third-party contracted motor carriers and transportation intermediaries. We utilize capacity from both third-party
motor carriers and transportation intermediaries to support other Expedited Freight service offerings in response to seasonal demands and volume surges in particular markets, to
handle overflow volume. A small portion of Expedited Freight’s transportation capacity is provided by employee drivers operating company-owned equipment.
Other Services
Expedited Freight provides additional value-added services that are integrated into the overall operation of its network.
Expedited Freight offers truckload services which include expedited truckload brokerage, dedicated fleet services, as well as high security and temperature-controlled
logistics services.
11
Other Expedited Freight services allow customers to access the following services from a single source:
•
•
•
•
customs brokerage;
warehousing, dock and office space;
hotshot or ad hoc ultra-expedited services; and
shipment consolidation and handling, such as shipment build-up and break-down and reconsolidation of air or ocean pallets or containers.
Customers
Our Expedited Freight wholesale customer base is primarily comprised of freight forwarders, third-party logistics (“3PL”) companies, integrated air cargo carriers and
passenger, cargo airlines, steamship lines and retailers. Expedited Freight’s freight forwarder customers vary in size from small, independent, single facility companies to large,
international logistics companies. Our dependable service and wide-ranging service offerings also make Expedited Freight an attractive option for 3PL providers, which is one
of the fastest growing segments in the transportation industry. Integrated air cargo carriers use our network to provide overflow capacity and other services, including shipment
of bigger packages and pallet-loaded cargo. In 2023, Expedited Freight’s ten largest customers accounted for approximately 33% of its revenue and no single customer had
revenue greater than 10% of Expedited Freight revenue for 2023.
Intermodal
Overview
Our Intermodal segment provides first- and last-mile high value intermodal container drayage services both to and from seaports and railheads. Intermodal also offers
dedicated contract and CFS warehouse and handling services. Intermodal also provides linehaul and local LTL service in the Midwest, as well as CFS warehousing services
(e.g. devanning, unit load device build-up/tear-down, and security screening) for air and ocean import/export freight at five of its Midwest terminals. Our Intermodal service
differentiators include:
•
•
•
immediate proof of delivery and signature capture capability via tablets;
all drivers receive dispatch orders on hand-held units and are trackable via GPS; and
daily container visibility and per diem management reports.
Operations
Intermodal’s primary office is located in Oak Brook, Illinois. Intermodal’s network consists of 30 locations primarily in the Midwest and Southeast, with a smaller
operational presence in the Southwest, Mid-Atlantic, and West Coast.
Transportation
Intermodal utilizes a mix of Company-employed drivers, Leased Capacity Providers and third-party motor carriers. During 2023, approximately 61% of Intermodal’s
direct transportation expenses were provided by Leased Capacity Providers, 35% by Company-employed drivers, and 4% by third-party motor carriers.
All of our Intermodal company and independent contractor tractors are equipped with computer tablets, which enable us to communicate with our drivers, plan and
monitor shipment progress and monitor our drivers’ hours of service. We use the real-time global positioning data obtained from these devices to improve customer and driver
service, and provide a high level of shipment visibility to our customers (including immediate proof of delivery signature capture). We believe that our technology is a key
differentiator and enables us to provide a higher level of service than our competitors.
Customers
Intermodal’s customer base is primarily comprised of international freight forwarders, passenger and cargo airlines, beneficial cargo owners and steamship lines. In
2023, Intermodal’s ten largest customers accounted for approximately 28% of its operating revenue and had no single customer with revenue greater than 10% of Intermodal
revenue for 2023.
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Competition
We compete in the North American transportation and logistics services industry, and the markets in which we operate are highly competitive, very fragmented and
historically have few barriers to entry. We compete with a large number of other asset-light logistics companies, asset-based carriers, integrated logistics companies, and third-
party freight brokers. To a lesser extent, we also compete with integrated air cargo carriers and passenger airlines. Our competition ranges from small operators that operate
within a limited geographic area to companies with substantially greater financial and other resources, including greater freight capacity.
Our Expedited Freight segment primarily competes with other national and regional truckload carriers. Expedited Freight also competes with LTL carriers, and to a
lesser extent, integrated air cargo carriers and passenger and cargo airlines. Our Intermodal segment primarily competes with national and regional drayage providers.
We believe competition in our segments is based primarily on quality of service, price, available capacity, on-time delivery, flexibility, reliability, security,
transportation rates, location of facilities, and business relationships, and we believe we compete favorably with other transportation service companies in these areas. To that
end, we believe our Expedited Freight segment has an advantage over other truckload and LTL carriers because Expedited Freight delivers faster, more reliable services
between cities at rates that are generally significantly below the price to transport the same shipments to the same destinations by air. We believe our Intermodal segment has a
competitive advantage over other drayage providers because we deliver more reliable service while offering greater shipment visibility and security. Additionally, we believe
our Intermodal segment is one of the leading providers of drayage and related services in North America today.
Marketing
We market all of our services through a sales and marketing team located in major markets of the United States. Senior leadership is also actively involved in sales and
marketing to national and local accounts. We participate in trade shows and advertise our services through digital marketing channels, trade publications, and the Internet via
www.tlxpedited.com, www.forwardair.com, www.forwardaircorp.com, and www.forward-intermodal.com. Our websites promote and describe our services in addition to lead
generation support. The information on our websites is not part of this filing and is therefore not incorporated by reference unless such information is specifically referenced
elsewhere in this report.
Seasonality
Generally, our operating results have been subject to seasonal trends when measured on a quarterly basis with the first quarter the weakest and the third and fourth
quarters have been the strongest. This seasonal pattern has been the result of numerous factors such as economic conditions, customer demand, weather, and national holidays.
Additionally, a significant portion of our revenue is derived from customers whose business levels are impacted by trends in the economy.
Workforce
We recognize that our workforce, including our freight handlers, is our most valuable asset. Through ongoing talent development, comprehensive compensation and
benefits, and a focus on health, safety and employee well-being, we strive to help our employees in all aspects of their lives so they can do their best at work. The recruitment,
training and retention of qualified employees is essential to support our continued growth and to meet the service requirements of our customers.
As of December 31, 2023, we had 4,014 full-time employees, 924 of whom were freight handlers and an additional 237 part-time employees, the majority of whom
were freight handlers. In 2023, none of our employees were covered by a collective bargaining agreement.
Roadway Health and Safety
We are committed to educating our employees and promoting driver health and wellness through routine communication campaigns and information designed to
emphasize the importance of safe operations. Drivers of our Leased Capacity Providers complete a three-day safety orientation as part of their onboarding where they are
assigned several training courses, and from time-to-time, additional safety trainings may also be assigned on an ongoing basis, dependent upon driving behaviors.
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We invest in a variety of programs focused on improving and maintaining driver health and wellness. We provide drivers access to a fatigue management service with
the goal of reducing fatigue-related accidents and encouraging healthy, restful sleep. We have implemented fleet safety equipment, including electronic monitoring systems, to
track driver safety, well-being, and health through monitoring of speed and proper hours-of-service-required rest breaks.
We provide a quarterly safety bonus and annual vehicle giveaway to incentivize our Leased Capacity Providers to promote safe driving practices. Both initiatives
celebrate drivers of our Leased Capacity Providers who have zero moving violations or accidents on a quarterly basis. Drivers who obtain four quarterly bonuses are eligible to
win a new vehicle. In 2023, 175 Leased Capacity Providers as well as Company-employed drivers qualified for the vehicle giveaway. Looking ahead, we will continue to
identify and promote programs that focus on the health and wellness for the drivers of our Leased Capacity Providers.
Workplace Health and Safety
We are committed to the safety of our employees and independent contractors. Our safety program focuses on risk reduction and safety management procedures that
promote preventative measures.
We employ, maintain, and monitor a robust health and safety program for all of our workers to prevent workplace incidents. Policies and procedures exist to investigate
accidents and monitor lessons learned, driving continuous improvement in the health and safety practices across our facilities. All of our employees are assigned to training
courses as part of onboarding and employees may be assigned additional refresher trainings based on corrective action or identified risk.
Diversity
We believe that our employees’ unique and diverse capabilities positively impact our success. Our commitment to diversity and inclusion starts at the top with a highly
skilled and diverse board. Since 2017, we added four female directors to our Board, two directors who identify as Hispanic, one director who identifies as African American
and one director who identifies as Indian.
We are committed to further increase the percentage of diverse representation in our overall employee base as well as to further initiatives for compensation equity,
employee engagement, development and inclusion. We believe that incorporating diversity and inclusion (“D&I”) initiatives into our everyday business practices enhances
innovation and enables diversity of thought. Building upon our core values, our employees value learning from different perspectives and welcome the opportunity to work with
those of diverse backgrounds. Through our D&I initiatives, employees take part in robust training, such as understanding diversity, generational awareness, and emotional
intelligence. We also provide our employees with Employee Resource Groups to help foster a diverse and inclusive workplace as well as provide for the growth and
development of underrepresented groups.
Compensation
We regularly review surveys of market rates for jobs to ensure our compensation practices are competitive. We are committed to providing total rewards that are
market-competitive and performance-based, driving innovation and operational excellence. Our compensation programs, practices, and policies reflect our commitment to
reward short- and long-term performance that aligns with, and drives shareholder value. Total direct compensation is generally positioned within a competitive range of the
market median, with differentiation based on tenure, skills, proficiency, and performance to attract and retain key talent. In addition to salaries, our compensation programs
include annual incentive bonuses, stock awards, and participation in a retirement savings plan, dependent upon the position and level of employee. We also invest in talent
development initiatives to support the ongoing career development of all employees, including learning workshops that target all levels of employees.
Equipment
We manage a trailer pool that is utilized by all of our businesses to move freight through our networks. Our trailer pool includes dry van, refrigerated and roller-bed
trailers, and substantially all of our trailers are 53 feet long. We own the majority of the trailers we use, but we supplement at times with leased trailers. As of December 31,
2023, we had 6,184 owned trailers in our fleet with an average age of approximately seven years. In addition, as of December 31, 2023, we also had 453 leased trailers in our
fleet. As of December 31, 2023, we had 306 owned tractors and straight trucks in our fleet, with an average age of approximately four years. In addition, as of December 31,
2023, we also had 683 leased tractors and straight trucks in our fleet.
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Corporate Sustainability
We embrace a comprehensive approach to sustainability that addresses Environmental, Social, and Governance (“ESG”) factors.
Our integrated framework focuses on three pillars: (i) People and Communities; (ii) Customer; and (iii) Environment. After completing an ESG assessment in 2020
utilizing the Sustainable Accounting Standards Board (SASB) standards and conducting a third-party stakeholder assessment, we identified ten ESG priority areas within these
three pillars that we believe are relevant to our business and important to our employees, communities, customers, investors, partners and contractors, and which form the
foundation for our sustainability strategy:
• Roadway Health & Safety
• Workplace Health & Safety
• Measurement & Disclosure
• Information Security
• Independent Contractor Practices
• Diversity, Equity, Inclusion, and Belonging (DEI&B)
• Responsible Supplier Practices
• Green House Gas (GHG) Emissions Reduction
Practices
Practices
• Community Impact & Partnerships
• Air Quality Practices
Since 2019, we have deployed meaningful resources to manage sustainability risks and to capitalize on related opportunities for the benefit of our stakeholders. In
2019, our Board amended the Corporate Governance and Nominating (“CG&N”) Committee Charter to give the CG&N Committee oversight over our ESG-related efforts. At
least twice a year, the CG&N Committee is updated on each of these topics and provides feedback and direction that it deems appropriate. At least annually, the Chair of the
CG&N Committee will provide a report on these topics to the full Board.
In 2020, we created the Head of Corporate ESG role to provide oversight of our ESG vision, strategic planning, performance management, and improvement activities.
In 2021, we published our first ESG Report and created our internal ESG Steering Committee, which oversees our company-wide ESG strategy and meets at least
quarterly and on an as-needed basis.
In 2022, we streamlined our internal data collection process, completed our Greenhouse Gas (“GHG”) inventory, set measurable targets and goals, and published our
second ESG report through the launch of our new ESG website which we will update annually with our progress. The ESG report and new website are accessible through our
investor relations site, https://ir.forwardaircorp.com/esg. The information on our website and our ESG report are not incorporated into, and are not a part of, this report.
In 2023, we completed our GHG inventory, collected additional data, and published our third ESG report. We also completed our Task Force on Climate-Related
Financial Disclosures analysis (“TCFD”) and submitted to CDP, a not-for-profit charity that runs the global disclosure system. Both our CDP report and new TCFD index are
included on our website in the 2022 ESG report update.
People and Communities
We are committed to maintaining safe facilities for our employees, independent contractors, customers and partners. As part of this pillar, we focus on Roadway Health
& Safety, Workplace Health & Safety, Independent Contractor Practices, and DEI&B Practices.
For instance, we employ, maintain, and monitor a robust Health and Safety program for all of our workers which establishes procedures and policies to prevent
workplace incidents. As part of our assessment, we have identified improvement activities to develop a comprehensive Emergency Preparedness Plan (“EPP”) for all our
facilities. The EPP is under development and in compliance with Occupational Safety and Health Administration standards.
We also remain committed to fostering a more diverse, equitable and inclusive work environment. In 2020, we created a Diversity, Equity, Inclusion, and Belonging
(“DEI&B”) Council to promote employee inclusion and engagement. Since the creation of the DEI&B Council, among other initiatives, we have implemented paid parental
leave, launched Employee Resource Groups to foster an inclusive environment and celebrated different cultures by commemorating key diversity holidays, observances,
celebrations and provided floating paid holidays.
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We are committed to supporting and giving back to the communities where we live and work, particularly through the support of our employee Veterans, and to the
community of Veterans in North America. For instance, we continue to support our Veterans through our charitable organization, Operation: Forward Freedom, a manifestation
of our ongoing commitment to Veteran-related causes. In 2023, we hosted our second annual Drive for Hope Golf tournament where we raised $525,000 for Hope for the
Warriors. Hope for the Warriors is a 501(c)(3) nonprofit whose mission is to care for and empower service members and military families challenged by the physical, moral and
psychological effects of war.
We also partner with non-profit organizations that positively impact our communities and our industry such as Truckers Against Trafficking, Women in Trucking and
Drexel Hamilton.
Customer
We are committed to providing the industry’s highest quality service in delivering on our customers’ expectations. As part of this pillar, we focus on Measurement &
Disclosure, Information Security, and Responsible Supplier Practices.
We remain committed to transparent and sustainable business practices. As part of this ongoing commitment, we have transformed and innovated several of our digital
and cloud technologies to create more efficient and integrated processes. We deploy various programs, including Safety and Environmental Management Systems, to collect
meaningful data that is communicated with all divisions and management.
We have also employed proactive measures to protect our network, computer systems and data from cyber threats, in part, by creating a robust Information Security
program in early 2020. We are continuously deploying infrastructure to meet the National Institute of Standards and Technology requirements.
As part of our Responsible Supplier program, we work to understand the ESG goals of both our suppliers and customers. We are establishing new data tracking
infrastructure and exploring opportunities to grow our supplier diversity program and partnerships. We aim to establish supplier diversification goals in the coming years.
Environment
We are committed to promoting a healthier natural and built environment by striving for continuous environmental improvements in all aspects of our business.
Environmental leadership requires not only our own action, but transparency and participation in the industry, including conversations about innovations and advancements that
make a difference. As part of this pillar, we focus on GHG Emissions Reduction Practices and Air Quality Practices.
As a transportation company, we are conscious of the environmental effects of our operations and are committed to tracking and reducing our GHG emissions and
improving our energy efficiency. We have established a preliminary goal to reduce absolute Scope 1 and Scope 2 GHG emissions (combined) by 2030 from a 2021 base year.
As part of this goal, in 2022, we partnered with carbon capture company Remora, reserving ten of its mobile devices for a pilot project expected to launch in the next two years.
We are also aligning with industry certifications, continuing to be a SmartWay certified company. SmartWay is a certification from the U.S. Environmental Protection Agency
(“EPA”) verifying company compliance with EPA regulations, including fuel efficiency ranges and emission standards.
To learn more about our ESG strategy and all our focus areas, visit our ESG website, https://forwardair.metrio.net/, also accessible through our investor relations site.
The information in our ESG report is not incorporated into, and is not a part of, this report. We are committed to making our results count and will continue to update our future
disclosures accordingly.
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Risk Management and Litigation
Under regulations of the Department of Transportation (“DOT”), we are liable for bodily injury and property damage caused by Leased Capacity Providers and
employee drivers while they are operating equipment under our various motor carrier authorities. The potential liability associated with any accident can be severe and
occurrences are unpredictable.
For vehicle liability, we retain a portion of the risk. Below is a summary of our risk retention on vehicle liability insurance coverage maintained by us up to $10,000
(in thousands):
Expedited Freight
LTL business $
Truckload business $
LTL, Truckload and Intermodal businesses $
Risk Retention
Frequency
Layer
Policy Term
5,000 Occurrence/Accident¹
5,000 Occurrence/Accident¹
5,000
Policy Term Aggregate²
$0 to $5,000
$0 to $5,000
$5,000 to $10,000
10/1/2023 to 10/1/2024
10/1/2023 to 10/1/2024
10/1/2023 to 10/1/2024
Intermodal
¹ For each and every accident/incident, the Company is responsible for damages and defense up to these amounts, regardless of the number of claims associated with any accident/incident.
² During the Policy Term, the Company is responsible for damages and defense within the stated Layer up to the stated, aggregate amount of Company Risk Retention before insurance will contribute.
1,000 Occurrence/Accident¹
10/1/2023 to 10/1/2024
$0 to $1,000
$
Also, from time to time, when brokering freight, we may face claims for the “negligent selection” of outside, contracted carriers that are involved in accidents, and we
maintain third-party liability insurance coverage with a $100 deductible per occurrence for our brokered services. Additionally, we maintain workers’ compensation insurance
with a self-insured retention of $500 per occurrence. We cannot guarantee that our self-insurance retention levels will not increase and/or that we may have to agree to more
unfavorable policy terms as a result of market conditions, poor claims experience or other factors. We could incur claims in excess of our policy limits or incur claims not
covered by our insurance. Any claims beyond the limits or scope of our insurance coverage may have a material adverse effect on us. Because we do not carry “stop loss”
insurance, a significant increase in the number of claims that we must cover under our self-insurance retainage could adversely affect our profitability. In addition, we may be
unable to maintain insurance coverage at a reasonable cost or in sufficient amounts or scope to protect us against losses.
From time to time, we are a party to other litigation arising in the normal course of our business, most of which involve claims for personal injury, property damage
related to the transportation and handling of freight, or workers’ compensation. We do not believe that any of these pending actions, individually or in the aggregate, will have a
material adverse effect on our business, financial condition or results of operations.
Regulation
We are regulated by various United States and state agencies, including the DOT. The DOT and the Federal Motor Carrier Safety Administration (“FMCSA”), an
agency within the DOT, manages a Compliance, Safety, Accountability initiative (“CSA”) which governs matters such as safety requirements and compliance, registration to
engage in motor carrier operations, drivers’ hours of service (“HOS”) requirements, and certain mergers, consolidations, and acquisitions. We are also subject to laws and
regulations under the United States Environmental Protection Agency and the Occupational Safety and Health Administration, which regulate safety, the supervision of
hazardous materials, water discharges, air emissions, solid waste disposal and the release and cleanup of other substances. These regulatory authorities have broad powers,
generally governing matters such as authority to engage in motor carrier operations, as well as motor carrier registration, driver hours of service, safety and fitness of
transportation equipment and drivers, transportation of hazardous materials, certain mergers and acquisitions and periodic financial reporting. The trucking industry is also
subject to regulatory and legislative changes from a variety of other governmental authorities, which address matters such as: increasingly stringent environmental,
occupational safety and health regulations, limits on vehicle weight and size, ergonomics, port security, and hours of service. In addition, we are subject to compliance with
cargo-security and transportation regulations issued by the Transportation Security Administration and Customs and Border Protection (“CBP”) within the United States
Department of Homeland Security, and our domestic customs brokerage operations are licensed by CBP.
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We are also subject to employment laws and regulations, including the changing regulatory landscape, with the potential effects of California Assembly Bill 5
(“California AB5”), which introduced a new test for determining worker classification that is viewed as expanding the scope of employee relationships and narrowing the scope
of independent contractor relationships.
Additionally, our Canada business activities are subject to similar requirements imposed by the laws and regulations of Canada, as well as its provincial laws and
regulations. Regulatory requirements, and changes in regulatory requirements, may affect our business or the economics of the industry by requiring changes in operating
practices or by influencing the demand for and increasing the costs of providing transportation services.
In addition, Omni delivers international freight forwarding, fulfillment services, customs brokerage, distribution, and value-added services, primarily focused on Asia
to the United States and Intra-Asia air transportation.
Service Marks
Through one of our subsidiaries, we hold the United States federal trademark registrations associated with the following service marks: Forward (logo), circle design
(logo), Forward Air, Forward Air (logos), Forward Air Complete, Forward Air Complete (logo), TQI, inc. (logo), FAF, Inc. (logo), Central States Trucking Co. (logo), North
America’s Most Complete Road Feeder Network, and Keeping Your Business Moving Forward. We also hold an allowed federal trademark application for the Precision
Execution logo. We additionally have certain common law service mark rights, including in the tagline When It Matters, Think Forward, that are not currently registered with
the United States Patent and Trademark Office. As our brands evolve, certain of these marks may go out of use, and others may be developed over time. Our marks are of
significant value to our business.
Available Information
We file reports with the Securities and Exchange Commission (the “SEC”), including annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on
Form 8-K. other reports and amendments to such reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended from time
to time. We are an electronic filer and the SEC maintains an Internet site at www.sec.gov that contains these reports and other information filed electronically. We make
available free of charge through the Investor Relations portion of our website such reports as soon as reasonably practicable after such material is electronically filed with or
furnished to the SEC. Our website address is www.forwardaircorp.com. Our goal is to maintain our website as a portal through which investors can easily find or navigate to
pertinent information about us. The information provided on the website is not part of this report, and is therefore not incorporated by reference unless such information is
otherwise specifically referenced elsewhere in this report.
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Item 1A. Risk Factors
The following are important risk factors that could affect our financial performance and could cause actual results for future periods to differ materially from our
anticipated results or other expectations, including those expressed in any forward-looking statements made in this Annual Report on Form 10-K or our other filings with the
SEC or in oral presentations such as telephone conferences and webcasts open to the public. You should carefully consider the following factors and consider these in
conjunction with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in Item 7 and our Consolidated Financial Statements and related
Notes in Item 8.
Risks Relating to Our Business and Operations
Overall economic conditions that reduce freight volumes could have a material adverse impact on our operating results and ability to achieve growth.
We are sensitive to changes in overall economic conditions that impact customer shipping volumes, industry freight demand and industry truck capacity. The
transportation industry historically has experienced cyclical fluctuations in financial results due to economic recession, downturns in business cycles of customers, interest and
currency rate fluctuations, inflation, supply chain disruptions, labor shortages and other economic factors beyond our control. Changes in U.S. trade policy could lead to “trade
wars” impacting the volume of economic activity in the United States, and as a result, trucking freight volumes may be materially reduced. Such a reduction may materially and
adversely affect our business. Deterioration in the economic environment subjects our business to various risks, including the following that may have a material and adverse
impact on our operating results and cause us not to maintain previously achieved or projected levels of profitability or achieve growth:
•
•
•
•
A reduction in overall freight volumes reduces our revenues and opportunities for growth. In addition, a decline in the volume of freight shipped due to a downturn in
customers’ business cycles or other factors (including our ability to assess dimensional and weight-based charges) generally results in decreases in freight pricing and
decreases in revenue derived from various surcharges and accessorial charges. In our LTL business, these decreases typically reduce the average revenue per pound of
freight, as carriers use price concession to compete for loads to maintain truck productivity.
Our base transportation rates are determined based on numerous factors such as length of haul, weight per shipment and freight class. During economic downturns and
periods of low freight volume, we may also have to lower our base transportation rates based on competitive pricing pressures and market factors.
Some of our customers may face economic difficulties that affect their ability to pay us, and some may go out of business. In addition, some customers may not pay us
as quickly as they have in the past, causing our working capital needs to increase.
A significant number of our transportation providers may go out of business and we may be unable to secure sufficient equipment or other transportation services to meet
our commitments to our customers.
• We may not be able to appropriately adjust our expenses to changing market demands as we have certain fixed expenses that we may not be able to adjust in a period of
rapid change in market demand. In order to maintain high degree of cost variability in our business model, it is necessary to adjust staffing levels to changing market
demands. In periods of rapid change, it is more difficult to match our staffing levels to our business needs.
If the domestic freight forwarder, Expedited Freight’s primary customer type, is disintermediated, and we are not able to transition effectively into servicing other
customers, like third-party logistics companies and beneficial cargo owners, our business and financial results could be materially adversely affected.
•
Inflation may increase our operating expenses and lower profitability.
The COVID-19 pandemic significantly increased economic and demand uncertainty, led to inflationary pressure in the U.S. and elsewhere, and led to disruption and
volatility in the demand for our services, our suppliers’ ability to fill orders and global capital markets.
Most of our operating expenses are sensitive to increases in inflation, including equipment prices, real property rental costs, fuel costs, insurance costs, employee wages
and purchased transportation. Furthermore, inflation may generally increase costs for materials, supplies and services and capital. With increasing costs, we may have to
increase our prices to maintain the same level of profitability. If we are unable to increase our prices sufficiently to offset increasing expenses, then inflation could have a
material adverse effect on our financial condition, results of operations, liquidity and cash flows.
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Volatility in fuel prices, shortages of fuel or the ineffectiveness of our fuel surcharge program could have a material adverse effect on our results of operations and
profitability.
We are subject to risks associated with the availability and price of fuel. Fuel prices have fluctuated dramatically over recent years. Future fluctuations in the
availability and price of fuel could adversely affect our results of operations. Fuel availability and prices can be impacted by factors beyond our control, such as natural or man-
made disasters, adverse weather conditions, political events, economic sanctions imposed against oil-producing countries or specific industry participants, disruption or failure
of technology or information systems, price and supply decisions by oil producing countries and cartels, terrorist activities, armed conflict, tariffs, sanctions, other changes to
trade agreements and world supply and demand imbalance. Over time we have been able to mitigate the impact of the fluctuations through fuel surcharge programs. Our fuel
surcharge rates are set weekly based on the national average for fuel prices as published by the U.S. Department of Energy and our fuel surcharge table. Our fuel surcharge
revenue is the result of our fuel surcharge rates and the tonnage transiting our networks. The impact of fuel on our results of operations depends on the relationship between the
applicable surcharge, the fuel efficiency of our Company drivers, and load factor achieved by our operations. Fluctuations in fuel prices in either direction could have a positive
or negative impact on our margins, particularly in our LTL business where the weight of a shipment subject to the fuel surcharge on a given trailer can vary materially. There
can be no assurance that our fuel surcharge revenue programs will be effective in mitigating the full impact of future increases in fuel prices. Conversely, decreases in fuel
prices reduce the amount of revenue derived from our fuel surcharge programs and accordingly, could reduce our consolidated revenues and may reduce margins for certain
businesses. In addition to changing fuel prices, fluctuations in volumes and related load factors may subject us to volatility in our fuel surcharge revenue. Fuel shortages,
changes in fuel prices and the potential volatility in fuel surcharge revenue may adversely impact our results of operations and overall profitability.
If we have difficulty attracting and retaining Leased Capacity Providers, other third-party transportation capacity providers, or freight handlers, our profitability and results
of operations could be adversely affected.
We depend on Leased Capacity Providers, third-party contracted motor carriers, and other intermediaries like freight brokers for most of our transportation capacity
needs. Competition for Leased Capacity Providers is intense, and sometimes there are shortages in the marketplace. In addition, a decline in the availability of trucks, tractors
and trailers for purchase or use by Leased Capacity Providers may negatively affect our ability to obtain the needed transportation capacity. We also require a large number of
employee freight handlers to operate our business efficiently. During periods of low unemployment in the areas where our terminals are located, we may have difficulty hiring
and retaining a sufficient number of freight handlers. If we have difficulty attracting and retaining enough qualified freight handlers or Leased Capacity Providers, we may need
to increase wages and benefits for our employees or to increase the cost at which we contract with our Leased Capacity Providers, either of which would increase our operating
costs. This difficulty may also impede our ability to maintain our delivery schedules, which could make our service less competitive and curtailing our planned growth. A
capacity deficit may lead to a decline in the volume of freight we receive from customers or a loss of customers.
To augment the transportation capacity provided by Leased Capacity Providers, we purchase transportation from other third-party motor carriers, typically at a higher
cost. As with Leased Capacity Providers, competition for third-party motor carriers is intense, and sometimes there are shortages of available third-party motor carriers. If we
cannot secure a sufficient number of Leased Capacity Providers and have to purchase transportation from third-party carriers, our operating costs will increase. If our labor and
operating costs increase, we may be unable to offset the increased costs by increasing rates without adversely affecting our business. As a result, our profitability and results of
operations could be adversely affected.
Because a portion of our network costs are fixed, any factors that result in a decrease in the volume or revenue per pound of freight shipped through our networks will
adversely affect our results of operations.
Our operations, particularly our networks of hubs and terminals, represent substantial fixed costs. As a result, any decline in the volume or revenue per pound of
freight we handle will have an adverse effect on our operating margin and our results of operations. Several factors can result in such declines, including adverse business and
economic conditions affecting shippers of freight as discussed above. In addition, volumes shipped through our network may be negatively impacted by lack of customer
contractual obligations or cancellations of existing customer contracts. Generally, we do not enter into long-term contracts with our customers. Rather, our customer contracts
generally allow for cancellation within 30 to 60 days. As a result, we cannot guarantee that our current customers will continue to utilize our services or that they will continue
at the same levels. The timing of our capital investments, pricing models and service availability is generally based on our existing and anticipated customer contracts and
freight volumes.
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Our profitability could be negatively impacted if our pricing structure proves to be inaccurate or off-market.
The price we charge our customers for the services we provide is based on our calculations of, among other things, the costs of providing those services. The
Company’s assessment of its costs and resulting pricing structure relies on the effective identification and measurement of the impact of a number of key operational variables
including, but not limited to volumes, operational efficiencies, length of haul, the mix of fixed versus variable costs, productivity and other factors. In some instances where we
have entered into contract freight rates with customers, in the event market conditions change and those contracted rates are below market rates, we may be required to provide
our services at a loss. If we are incorrect in our assumptions and do not accurately calculate or predict the costs to us to provide our services, we could experience lower margins
than anticipated, loss of business, or an inability to offer competitive products and services.
We derive a significant portion of our revenue from a few major customers, the loss of one or more of which could have a material adverse effect on our business.
While no customer accounted for more than 10% of consolidated revenues for the calendar year ended December 31, 2023, our top ten customers, based on revenue,
accounted for approximately 26% of our revenue. These customers can impact our revenues and profitability based on factors such as: (i) industry trends related to e-commerce
that may apply downward pricing pressures on the rates our customers can charge; (ii) the seasonality associated with the fourth quarter holiday season; (iii) business
combinations and the overall growth of a customer’s underlying business; and (iv) any disruptions to our customers’ businesses. These customers could choose to divert all or a
portion of their business with us to one of our competitors, demand pricing concessions for our services, require us to provide enhanced services that increase our costs, or
develop their own shipping and distribution capabilities. Our Expedited Freight and Intermodal segments generally do not have long-term contracts with their customers. A
reduction in, or termination of, our services by one or more of our major customers could have a material adverse effect on our business and operating results. In addition, any
increased direct sales efforts to direct shippers and beneficial cargo owners, as well as the potential acquisition of other businesses that may be perceived as competing more
directly with our customers, could adversely affect our expenses, pricing, third-party relationships and revenues, particularly if such actions affect any of these key customers.
We are dependent on our senior management team and other key employees, and the loss of any such personnel could materially and adversely affect our business,
operating results and financial condition.
Our future performance depends, in significant part, upon the continued service of our senior management team and other key employees as well as our ability to
develop and implement an effective succession plan. We cannot be certain that we can retain these employees. The loss of the services of one or more of these or other key
personnel could have a material adverse effect on our business, operating results and financial condition if we are unable to timely secure replacement personnel who have
sufficient experience in our industry or in the management of our business.
Our business is subject to seasonal trends.
Generally, our operating results have been subject to seasonal trends when measured on a quarterly basis with the first and second quarters generally weaker compared
to our third and fourth quarters. This trend is dependent on numerous factors including economic conditions, customer demand and weather. Revenue is directly related to the
available working days of shippers, national holidays and the number of business days during a given period, which may also create seasonal variability on our results of
operations. During the remaining winter months after the winter holiday season, our freight volumes are generally lower because some customers reduce shipment levels. In
addition, a substantial portion of our revenue is derived from customers in industries whose shipping patterns are tied closely to consumer demand, which can sometimes be
difficult to predict, or are based on just-in-time production schedules. Therefore, our revenue is, to a large degree, affected by factors that are outside of our control. There can
be no assurance that our historic operating patterns will continue in future periods as we cannot influence or reliably forecast many of these factors. Our ability to predict and
adapt to future seasonality in our business will affect our operations and financial results.
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Our results of operations may be affected by harsh weather conditions, disasters and pandemics.
Certain weather-related conditions such as ice and snow can disrupt our operations. Our operating expenses have historically been higher in the winter months because
of cold temperatures and other adverse winter weather conditions, which generally result in decreased fuel efficiency, increased cold weather-related maintenance costs of
equipment and increased insurance and claims costs. Harsh weather can temporarily halt deliveries, which could result in decreased revenues and operational challenges
resulting from the interruption. Disasters, including severe weather, such as hurricanes or blizzards, and public health issues, such as pandemics, such as the COVID-19
pandemic, occurring in the United States or abroad, could result in the temporary lack of an adequate work force and the temporary disruption in the transport of goods to or
from overseas which could prevent, delay or reduce freight volumes and could have an adverse impact on consumer spending and confidence levels, all of which could result in
decreased revenues.
Our products and services are directly tied to the production and sale of goods. As a result, transportation and supply chain companies such as ours experienced
slowdowns and reduced demand for our services as a result of the COVID-19 pandemic. Although our business and operations have returned to pre-COVID levels, should we
experience another COVID-19-like virus outbreak in the future with similar restrictions, we would anticipate a similar impact on our business.
Labor shortages and increased turnover or increases in employee and employee-related costs could adversely affect our ability to attract and retain qualified employees.
A number of factors may adversely affect the labor force available to us or increase labor costs from time to time, including high employment levels, federal
unemployment subsidies, and other government regulations, which include laws and regulations related to workers’ health and safety, wage and hour practices, immigration,
and federal vaccine mandates. A labor shortage or increased turnover rates within our employee base could lead to increased costs, such as increased overtime to meet demand
and increased wage rates to attract and retain employees and could negatively affect our ability to effectively operate our business or otherwise operate at full capacity.
In addition, the compensation we offer our employees is subject to market conditions that may require increases in employee compensation, which become more likely
as economic conditions improve or as inflation increases. If we are unable to attract and retain a sufficient number of qualified employees, we could be required to increase our
compensation and benefits packages or reduce our operations and face difficulty meeting customer demands, any of which could adversely affect our financial condition, results
of operations, liquidity, and cash flows.
Our business could also be adversely affected by strikes and labor negotiations or by a work stoppage at one or more of our or our subcontractors’ facilities. Shutdowns
and similar disruptions to major points in national or international transportation networks, most of which are beyond our control, could result in terminal embargoes, disrupt
equipment and freight flows, depress volumes and revenues, increase costs and have other negative effects on our operations and financial results. In addition, labor disputes
involving our customers could affect our operations. If our customers experience slowdowns or closures because they are unable to negotiate labor contracts, our revenue and
profitability could be negatively impacted.
We could be required to record a material non-cash charge to income if our recorded intangible assets or goodwill are determined to be impaired.
We have $134,789 of net definite-lived intangible assets on our consolidated balance sheet at December 31, 2023, which we expect will increase significantly as a
result of the Omni Acquisition. Our definite-lived intangible assets primarily represent the value of customer relationships and non-compete agreements that were recorded in
conjunction with our various acquisitions. We review our long-lived assets, such as our definite-lived intangible assets, for impairment whenever events or changes in
circumstances indicate that the carrying amount may not be recoverable. Impairment is recognized on these assets when the estimated fair value is less than the carrying
value. If such measurement indicates impairment, we would be required to record a non-cash impairment charge to our consolidated statement of comprehensive income in the
amount that the carrying value of these assets exceeds the estimated fair value of the assets.
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We also have $278,706 of goodwill on our consolidated balance sheet at December 31, 2023 and will have significantly more goodwill on our balance sheet as a result
of the Omni Acquisition. Goodwill is assessed for impairment annually (or more frequently if circumstances indicate possible impairment) for each of our reporting units. This
assessment includes comparing the estimated fair value of each reporting unit to the carrying value of the net assets assigned to the respective reporting unit. If the carrying
value of the reporting unit exceeded the estimated fair value of the reporting unit, we would be required to record a non-cash impairment charge calculated as the amount by
which the carrying value exceeds the reporting units estimated fair value. A non-cash impairment charge to our consolidated statement of comprehensive income could have a
material adverse effect on our financial results.
We operate in highly competitive and fragmented segments of our industry, and our business will suffer if we are unable to adequately address downward pricing pressures
and other factors that may adversely affect our results of operations, growth prospects and profitability.
The segments of the freight transportation industry in which we participate are highly competitive, very fragmented and historically have few barriers to entry. We
compete with a large number of other asset-light logistics companies, asset-based carriers, integrated logistics companies, and third-party freight brokers. To a lesser extent, we
also compete with integrated air cargo carriers and passenger airlines. Our competition ranges from small operators that compete within a limited geographic area to companies
with substantially greater financial and other resources, including greater freight capacity. We also face competition from freight forwarders who decide to establish their own
networks to transport expedited ground freight, as well as from logistics companies, Internet matching services and Internet and third-party freight brokers, and new entrants to
the market. In addition, customers can bring in-house some of the services we provide. We believe competition is based primarily on quality service, price, available capacity,
damage-free handling, on-time delivery, flexibility, reliability and security and transportation rates as well as the ability to acquire and maintain terminal facilities in desirable
locations at reasonable rates. Many of our competitors periodically reduce their rates to gain business, especially during times of economic decline, which may limit our ability
to maintain or increase or profit margins. In an effort to reduce costs, we have seen our customers solicit bids from multiple transportation providers and develop or expand
internal capabilities for some of the services that we provide.
In addition, competitors may pursue other strategies to gain a competitive advantage such as developing superior information technology systems or establishing
cooperative relationships to increase their ability to address customer needs. The development of new information technology systems or business models could result in our
disintermediation in certain businesses, such as freight brokerage. Furthermore, the transportation industry continues to consolidate. As a result of consolidation, our
competitors may increase their market share and improve their financial capacity, and may strengthen their competitive positions relative to ours. Business combinations could
also result in competitors providing a wider variety of services at competitive prices, which could adversely affect our financial performance. These competitive pressures may
cause a decrease in our volume of freight, require us to lower the prices we charge for our services and adversely affect our results of operations, growth prospects and
profitability.
Difficulty in forecasting timing or volumes of customer shipments could adversely impact our margins and operating results and lead to difficulties in predicting liquidity.
Customer satisfaction depends upon our ability to meet short-term customer requirements that can be difficult to predict and prepare for. Generally, we do not enter
into long-term contracts with our customers. Accordingly, the demand from our customers may fluctuate from time to time, which makes it difficult for us to project future
demands from our customers. As a result, we cannot guarantee that our current customers will continue to utilize our services or that they will continue at the same levels. Our
success depends on receiving continuous orders from our customers. Personnel costs, one of our largest expense items, is highly variable as we must staff to meet uncertain
short-term demand that may not align with long-term trends. As a result, short-term operating results could be disproportionately affected due to uncertainties with our customer
requirements and the challenges of staffing appropriately.
A significant portion of the combined company’s revenues will be derived from customers in industries, such as retail and technology, that exhibit shipping patterns
that are tied closely to consumer demand and from customers in industries in which shipping patterns are dependent upon just-in-time production schedules. Therefore, the
timing of the combined company’s revenues will be impacted by factors out of the combined company’s control, such as a sudden change in consumer demand for retail goods,
changes in trade tariffs, product launches and/or manufacturing production delays. Additionally, many customers ship a significant portion of their goods at or near the end of a
fiscal quarter and, therefore, we may not learn of decreases in revenues until late in a quarter. As a result, the combined company’s liquidity, cash flows and results of operations
may be difficult to predict.
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Higher prices by Leased Capacity Providers and other third-party transportation capacity providers could adversely impact the combined company’s margins and operating
results.
The combined company will be largely reliant on Leased Capacity Providers that lease their equipment to the combined company and third-party transportation
capacity providers to perform its freight transportation and other operations. These providers can be expected to charge higher prices if market conditions warrant or to cover
higher operating expenses. Our profitability and income from operations may be impacted if we are unable to pass on such provider price increases to our customers. Increased
demand for over the road transportation services and changes in regulations may reduce available capacity and increase pricing for both Leased Capacity Providers and third-
party transportation providers. In some instances we will have entered into fixed contract freight rates with customers and, in the event market conditions change and those
contracted rates are below market rates, we may be required to provide transportation services at a loss.
As a result of the Omni Acquisition, the combined company’s international operations subject us to operational and financial risks.
As a result of the Omni Acquisition, the combined company will provide services within and between foreign countries on an increasing basis. Business outside of the
U.S. is subject to various risks, including:
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changes in tariffs, trade restrictions, and trade agreements;
compliance with the laws of numerous taxing jurisdictions where we conduct business, potential double taxation of our international earnings and potentially
adverse tax consequences due to U.S. and foreign tax laws as they relate to our international business;
difficulties in managing or overseeing foreign operations and agents;
economic and political instabilities in some countries;
new and different sources of competition and laws and business practices favoring local competitors;
limitations on the repatriation of funds because of foreign exchange controls;
different liability standards;
intellectual property laws of countries that do not protect our rights in our intellectual property, including but not limited to, our proprietary information
systems, to the same extent as the laws of the U.S.;
compliance with multiple, conflicting, ambiguous or evolving governmental laws and regulations, including employment, tax, privacy, anti-corruption,
import/export, customs, anti-boycott, sanctions and embargoes, antitrust, data transfer, storage and protection, ESG and industry-specific laws and regulations,
and our ability to identify and respond timely to compliance issues when they occur; and
the impact of uncertainties regarding the United Kingdom’s exit from the European Union (the “EU”) on regulations, current, taxes and operations, including
possible disruptions to the sale of our services or the movement of our people between the United Kingdom, the EU and other locations.
The occurrence or consequences of any of these factors may restrict our ability to operate in the affected region and/or decrease the profitability of our operations in
that region.
As we continue to expand our business internationally, we expose the combined company to increased risk of loss from foreign currency fluctuations, as well as longer
accounts receivable payment cycles. Foreign currency fluctuations could result in currency exchange gains or losses or could affect the book value of our assets and liabilities.
Furthermore, we may experience unanticipated changes to our income tax liabilities resulting from changes in geographical income mix and changing international tax
legislation. We have limited control over these risks, and if we do not correctly anticipate changes in international economic and political conditions, we may not alter our
business practices in time to avoid adverse effects.
Our increased direct sales efforts to direct shippers and beneficial cargo owners could be viewed as a competitive threat by our current domestic forwarder customers.
We are increasing our sales to direct shippers and beneficial cargo owners, which as a group are the primary customers of freight forwarders, 3PLs and other
transportation intermediaries. These intermediaries are significant customers of our business in the United States. Our activities related to our increased direct sales efforts to
direct shippers and beneficial cargo owners, as well as the potential acquisition of other businesses that may be perceived as competing with our customers, could harm
relationships with our current customers, employees or suppliers, and could adversely affect our expenses, pricing, third‑party relationships and revenues. Further, a loss of a
significant customer could have a material adverse effect on our business, results of operations, financial condition and cash flows.
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Reductions in the available supply or increases in the cost of new equipment may adversely impact our profitability and cash flows.
We and our Leased Capacity Providers and ISPs may face difficulty in purchasing new equipment due to decreased supply or increased costs. Investment in new
equipment is a significant part of our annual capital expenditures and we require an available supply of tractors, trailers, and other freight handling equipment from
manufacturers to operate and grow our business. We may also be subject to shortages in raw materials that are required for the production of critical operating equipment and
supplies, such as shortages in rubber or steel. Tractor and trailer manufacturers have experienced significant shortages of various component parts and supplies, forcing many
manufacturers to reduce or suspend their production, which has led to a lower supply of tractors, trailers, and other equipment, higher prices, and lengthened trade cycles.
In addition, the availability and price of our equipment may also be adversely affected in the future by regulations on newly manufactured equipment and engines. We
are subject to regulations issued by the EPA and various state agencies, particularly the California Air Resources Board (“CARB”), that have required progressive reductions in
exhaust emissions. We may become subject to new or more restrictive regulations, or differing interpretations of existing regulations, which may increase the cost of providing
transportation services or adversely affect our results of operations. We are also unable to predict how any future changes in United States government policy will affect EPA
and CARB regulation and enforcement.
These regulations, the limited equipment availability, and other supply chain factors have resulted and could continue to result in higher prices for new equipment,
which could have a material adverse effect on our business, financial condition, and results of operations, particularly our maintenance expense, mileage productivity, and
driver retention.
Because our Intermodal business depends heavily on freight transiting seaports and railheads, our operating results and financial condition are likely to be adversely
affected by any reduction or deterioration in service at seaports or railheads.
Our Intermodal business provides first- and last-mile high value container drayage services to and from seaports and railheads. Consequently, our ability to continue to
expand our Intermodal transportation business is dependent upon the seaports and railheads’ capacity to handle Intermodal freight. Our business has, at times, been adversely
affected by situations impacting one or more railheads or seaports, including congestion, labor shortages, slowdowns or stoppages, adverse weather conditions, changes to rail
operations, or other factors that hinder the railheads and seaports to efficiently handle freight transiting their operations, and these situations may occur again in the future,
which could have a material adverse effect on our results of operations and financial condition.
We may have difficulty effectively managing our growth, which could adversely affect our business, results of operations and financial condition.
Our growth strategy includes increasing freight volume from new and existing customers, improving our freight characteristics, implementing best practices and
operational efficiencies, expanding our service offerings and pursuing strategic transactions. Our growth plans will place significant demands on our management and operating
personnel.
To manage our current and anticipated future growth effectively, we must continue to maintain, and may need to enhance, our operating and management information
systems and information technology infrastructure, which will place additional demands on our resources and operations. Failure to manage our growth effectively could lead us
to over-invest or under-invest in technology and operations; result in weaknesses in our infrastructure, systems, or controls; give rise to operational mistakes, losses, or loss of
productivity or business opportunities; reduce customer satisfaction; limit our ability to respond to competitive pressures; or result in loss of employees and reduced productivity
of remaining employees. If our management is unable to effectively manage our growth, our expenses may increase more than expected, our revenue could decline or may
grow more slowly than expected, and we may be unable to implement our growth strategy.
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We may not make future acquisitions or, if we do, we may not realize the anticipated benefits of future acquisitions and integration of these acquisitions may disrupt our
business and occupy management.
We have grown through acquisitions, and we may pursue opportunities to expand our business by acquiring other companies in the future. Our ability to grow
revenues, earnings and cash flow depends in part upon our ability to identify and successfully acquire and integrate businesses at appropriate prices, realize anticipated synergies
and business performance from such acquisitions. Appropriate targets for acquisition are difficult to identify and transactions are difficult to complete for a variety of reasons,
including but not limited to, limited due diligence, high valuations, other interested parties, negotiations of the definitive documentation, satisfaction of closing conditions, the
need to obtain antitrust or other regulatory approvals on acceptable terms, and availability of funding. There is no assurance that we will be successful in identifying,
negotiating, consummating or integrating any future acquisitions. Additionally, we may not realize the anticipated benefits of any future acquisitions. Each acquisition has
numerous risks including:
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difficulty in integrating the operations and personnel of the acquired company;
unanticipated costs to support new business lines or separate legal entities;
disruption of our ongoing business, distraction of our management and employees from other opportunities and responsibilities due to integration issues;
additional indebtedness or the issuance of additional equity to finance future acquisitions, which could be dilutive to our shareholders;
inability to access capital markets on acceptable terms or at all;
potential loss of key customers or employees of acquired companies along with the risk of unionization of employees;
pricing pressure resulting from differing customer pricing practices of the acquired company or varying pricing dynamics in the acquired company's market;
inability to achieve the financial and strategic goals for the acquired and combined businesses;
potential impairment of tangible and intangible assets and goodwill acquired as a result of acquisitions; and
potential failure of the due diligence processes to identify significant issues with legal and financial liabilities and contingencies, among other things.
The timing and number of acquisitions we pursue may also cause volatility in our financial results. In the event that we do not realize the anticipated benefits of an
acquisition or if the acquired business is not successfully integrated, there could be a material adverse effect on our financial condition, results of operations, liquidity and cash
flows.
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Risks Relating to Omni Acquisition
The Omni Acquisition may not achieve its intended benefits, and certain difficulties, costs or expenses may outweigh such intended benefits.
We may be unable to realize all of the anticipated benefits of the Omni Acquisition. The success of the Company’s combination with Omni will depend, in part, on our
ability to realize the anticipated benefits and synergies from reorganizing our corporate structure and combining the businesses of the Company and Omni following the Omni
Acquisition, including cost and revenue synergies. The anticipated benefits and synergies of our combination with Omni may not be realized fully or at all, may take longer to
realize than expected or could have other adverse effects that we do not currently foresee. We believe these risks are further heightened given the dispute with Omni, which was
resolved prior to today, but which may make it more challenging than expected to operate the combined entity in a way that will achieve the previously anticipated benefits and
synergies.
Some of the assumptions that we have made, such as the tax outcomes of the contemplated pre-closing reorganization and the achievement of operating synergies, may
not be realized. It is possible that the integration process could result in the loss of key Company or Omni employees, the loss of customers, the disruption of either company’s
or both companies’ ongoing businesses, inconsistencies in standards, controls, procedures and policies, unexpected integration issues, higher than expected integration costs and
an overall post-completion integration process that takes longer than originally anticipated. There could be potential unknown liabilities and unforeseen expenses associated
with the Omni Acquisition that were not discovered in the course of performing due diligence or that arise from the contemplated pre-closing reorganization or the combination
of the businesses. Specifically, the following issues, among others, must be addressed in integrating the operations of the company and Omni to realize the anticipated benefits
of the Omni Acquisition so the combined company performs as expected and realizes its anticipated cost and revenue synergy opportunities:
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combining the companies’ operations and corporate functions;
combining the businesses of the Company and Omni and meeting the capital requirements of the combined company following the merger, in a manner that permits the
combined company to achieve cost savings and revenue synergies anticipated to result from the merger, the failure of which would result in the anticipated benefits of the
merger not being realized in the time frame currently anticipated or at all;
integrating the companies’ personnel;
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integrating the companies’ technologies;
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integrating and unifying the offerings and services available to customers;
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identifying and eliminating redundant and underperforming functions and assets;
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harmonizing the companies’ operating practices, employee development and compensation programs, internal controls and other policies, procedures and processes;
• maintaining existing agreements with customers, providers and vendors and avoiding delays in entering into new agreements with prospective customers, providers and
vendors;
addressing possible differences in business backgrounds, corporate cultures and management philosophies;
consolidating the companies’ administrative and information technology infrastructure;
coordinating distribution and marketing efforts;
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coordinating geographically dispersed organizations; and
effecting actions that may be required in connection with obtaining the requisite regulatory approvals.
In addition, at times the attention of certain members of either company’s or both companies’ management and resources may be focused on the integration of the
businesses of the two companies and diverted from day-to-day business operations or other opportunities that may have been beneficial to such company, which may disrupt
our business.
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Our Up-C structure places significant limitations on our cash flow because our principal asset is our interest in Opco, and, accordingly, we depend on distributions from
Opco to pay our taxes and expenses, including payments under the Tax Receivable Agreement.
As part of our umbrella partnership-C corporation (“Up-C”) structure with Omni, we are a holding company and our principal asset is our ownership of common units
of our operating subsidiary, Clue Opco LLC (“Opco”). This structure is designed to enable us to obtain certain tax benefits, and 83.5% of such tax benefits are payable to
certain holders of Omni under our tax receivable agreement with the holders of Omni and Opco (“Tax Receivable Agreement”). However, as a result of the Omni Acquisition,
we have no independent means of generating revenue or cash flow, and our ability to pay taxes and operating expenses, and to service our liabilities, is dependent upon the
financial results and cash flows of Opco and its subsidiaries, along with the distributions we receive from Opco. Opco intends to make payments to us out of available funds, and
subject to limitations imposed under the agreements governing our indebtedness, and there can be no assurance that Opco and its subsidiaries will generate sufficient cash flow
to distribute funds to us or that applicable state law and contractual restrictions will permit such distributions. Moreover, because of our Up-C structure, this financing
arrangement can give rise to U.S. corporate income tax liabilities for us in respect of the formation of Opco, and subsequently as Opco makes cash distributions to us to the
extent they are subject to certain technical regulations regarding disguised sales, subject to certain exceptions including for distributions of operating cash flows and leveraged
distributions. In such an event, we would depend on further cash distributions from Opco in order to enable us to pay such tax liabilities.
We also incur expenses related to our operations, which may be significant. We intend, as Opco’s sole manager, to cause Opco to make cash distributions to the owners
of Opco membership interests so that we receive (i) an amount sufficient to allow us to fund all of our tax obligations in respect of taxable income allocated to us and (ii)
distributions to cover our operating expenses, including any obligations to make payments under the Tax Receivable Agreement. When Opco makes distributions, the holders of
Omni and the other members of Opco besides us are and will be entitled to receive proportionate distributions based on their economic interests in Opco’s common units at the
time of such distributions. Opco’s ability to make such distributions may be subject to various limitations and restrictions, such as restrictions on distributions that would either
violate any contract or agreement to which Opco is then a party, or any applicable law, or that would have the effect of rendering Opco insolvent or exceed the amounts that
Opco is permitted to distribute under the agreements governing our indebtedness. If we do not have sufficient funds to pay tax or other liabilities or to fund our operations, we
may have to borrow funds, which could materially and adversely affect our liquidity and financial condition and subject us to various restrictions imposed by any such
indebtedness. To the extent that we are unable to make payments under the Tax Receivable Agreement for any reason, such payments generally will be deferred and will accrue
interest until paid, but nonpayment for a specified period may constitute a material breach of a material obligation under the Tax Receivable Agreement and therefore accelerate
payments due under the Tax Receivable Agreement. Any inability to pay tax or other liabilities or to fund our operations could have a material and adverse effect on our
business, results of operations, financial condition and prospects.
Failure to attract, motivate and retain executives and other key employees could diminish the anticipated benefits of the Omni Acquisition.
The success of the Omni Acquisition will depend in part on the retention of personnel critical to the business and operations of the Company following the Omni
Acquisition due to, for example, their technical skills or management expertise.
Current and prospective employees of the Company and Omni may experience uncertainty about their future role with the Company and Omni until strategies with
regard to these employees are announced or executed, which may impair our ability to attract, retain and motivate key management, sales, marketing, technical and other
personnel following the Omni Acquisition. If we are unable to retain personnel, including our and Omni’s key management, who are critical to the successful integration and
future operations of the companies, the combined company could face operational disruptions, loss of existing customers or loss of sales to existing customers, loss of key
information, expertise or know-how, and unanticipated additional recruitment and training costs. In addition, the loss of key personnel could diminish the anticipated benefits of
the Omni Acquisition.
If key employees of the Company or Omni depart, the integration of the companies may be more difficult and our business following the Omni Acquisition may be
harmed. Furthermore, we may have to incur significant costs in identifying, hiring and retaining replacements for departing employees and may lose significant expertise and
talent relating to the business of each of the Company or Omni, and our ability to realize the anticipated benefits of the Omni Acquisition may be adversely affected. In addition,
there could be disruptions to or distractions for the workforce and management associated with activities of labor unions or integrating employees into the combined company.
No assurance can be given that we will be able to attract or retain key employees of the Company and Omni to the same extent that those companies have been able to attract or
retain their own employees in the past.
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We may not be able to retain customers or suppliers, or customers or suppliers may seek to modify contractual obligations with us, which could have an adverse effect on
the combined company’s business and operations. Third parties may terminate or alter existing contracts or relationships with Omni or us.
As a result of the Omni Acquisition, we may experience impacts on relationships with customers and suppliers that may harm our business and results of operations.
Certain customers or suppliers may seek to terminate or modify contractual obligations following the Omni Acquisition whether or not contractual rights are triggered as a result
of the Omni Acquisition. In particular, certain of our existing customers directly compete with Omni and, as a result, may react negatively to the Omni Acquisition. There can
be no guarantee that customers and suppliers will remain with or continue to have a relationship with us or do so on the same or similar contractual terms following the Omni
Acquisition. If any customers or suppliers seek to terminate or modify contractual obligations or discontinue the relationship with the combined company, then our business and
results of operations may be harmed. If certain of our suppliers were to seek to terminate or modify an arrangement with us, then we may be unable to procure necessary
supplies from other suppliers in a timely and efficient manner and on acceptable terms, or at all.
We will incur significant transaction, merger-related and integration costs in connection with the Omni Acquisition.
The Company has incurred a number of non-recurring costs associated with combining the operations of the two Company and Omni, as well as transaction fees and
other costs related to the Omni Acquisition. These costs and expenses include fees paid to financial, legal and accounting advisors, severance and other potential
employment-related costs, including retention and severance payments that may be made to certain of our employees and Omni employees, filing fees, printing expenses and
other related charges.
The Company will continue to incur integration costs following the Omni Acquisition as there are a large number of processes, policies, procedures, operations,
technologies, facilities and systems that must be integrated. Although the Company expects that the elimination of duplicative costs, strategic benefits, additional income as well
as the realization of other efficiencies related to the integration of the businesses may offset incremental transaction, merger-related and integration costs over time, any net
benefit may not be achieved in the near term or at all. While we assumed that certain expenses would be incurred in connection with the Omni Acquisition and the other
transactions contemplated by the Amended Merger Agreement, there are many factors beyond our control that could affect the total amount or the timing of the integration and
implementation expenses.
Significant demands will be placed on the Company and Omni as a result of the combination of the two companies.
As a result of the combination of the Company and Omni, significant demands will be placed on the managerial, operational and financial personnel and systems of the
Company and Omni. We cannot assure you that our and Omni’s respective systems, procedures and controls will be adequate to support the expansion of operations following
and resulting from the combination of the two companies. The future operating results of the combined company will be affected by the ability of its officers and key employees
to manage changing business conditions and to controls and reporting systems in response to the Omni Acquisition.
Following the announcement of the Omni Acquisition, the price of our common stock decreased significantly. Continued downward pressure on our stock price may
increase the risk of shareholder litigation and shareholder activism, which could divert management's attention and resources.
Following the announcement of the Omni Acquisition, the market price of our common stock decreased substantially and is currently trading at significantly lower
levels than prior to the announcement of the Omni Acquisition. As a consequence of this decrease, investors may, under the fear of suffering greater losses, be more inclined to
sell their shares of the Company’s common stock more quickly and at greater discounts than otherwise would be the case in the absence of a sudden and significant decline in
the stock price. Plaintiffs have, in the past, initiated securities class action litigation against a company following periods of volatility in the market price of its securities. We
may in the future be the target of such litigation. Securities and derivative litigation, even without merit, defending against these claims could result in substantial costs and
liabilities and divert management’s attention and resources.
In addition, the recent volatility in our common stock has increased the risk of shareholder activism. For example, ClearBridge Investments, LLC publicly released a
letter sent to our former Chairman and CEO and Lead Independent Director on August 18, 2023, with the purpose of urging the Board to reconsider the merger. Such
shareholder activism, like securities litigation, could result in substantial costs and could divert management’s attention and resources.
29
Omni Holders are a significant holder of our common stock following completion of the Omni Acquisition.
Following the completion of the Omni Acquisition, direct and certain indirect equity holders of Omni (“Omni Holders”) own approximately 16.5% of our common
stock. If our shareholders approve the conversion of the preferred stock, then the Omni Holders will represent 35.0% of our common stock on a fully diluted, as-converted and
as-exchanged basis. As a result, Omni Holders may be able to impact matters requiring shareholder approval. In addition, the existence of a large shareholder may have the
effect of deterring hostile takeovers, delaying or preventing changes in control or changes in management, or limiting the ability of our other shareholders to approve
transactions that they may deem to be in the best interests of our company.
So long as the Omni Holders continue to control a significant amount of our common stock, they may continue to be able to impact matters requiring shareholder
approval. In any of these matters, the interests of Omni Holders may differ or conflict with the interests of our other shareholders. Moreover, this concentration of stock
ownership may also adversely affect the trading price of our common stock to the extent investors perceive a disadvantage in owning stock of a company with a large
shareholder.
The unaudited pro forma financial data included in the September 8-K is preliminary and does not reflect the changes to the transaction as a result of the Amended Merger
Agreement. The combined company’s actual financial position and results of operations after the Omni Acquisition may differ materially from the unaudited pro forma
financial data included in the September 8-K.
The unaudited pro forma consolidated financial statements included in our Current Report on Form 8-K filed on September 20, 2023 (“September 8-K”) contain a
variety of adjustments, assumptions and preliminary estimates and were not necessarily indicative of what the combined company’s actual financial position or results of
operations would have been had the Omni Acquisition been completed on the dates indicated. In addition, the unaudited pro forma financial information included in the
September 8-K were based in part on a variety of assumptions. These assumptions may not prove to be accurate, and other factors may affect the combined company’s results of
operations or financial condition following the Omni Acquisition. Accordingly, the historical information and the unaudited pro forma financial information included in the
September 8-K do not necessarily represent the combined company’s results of operations and financial condition had the Company and Omni operated as a combined entity
during the periods presented, or of the combined company’s results of operations and financial condition after the combination of the Company and Omni. The combined
company’s potential for future business success and operating profitability must be considered in light of the risks, uncertainties, expenses and difficulties typically encountered
by recently combined companies.
In preparing the unaudited pro forma financial information contained in the September 8-K, we gave effect to, among other items, the consummation of the Omni
Acquisition, the notes offering, the consummation of the escrow merger and the assumption of the notes, the entrance into and the borrowings under the facilities expected to be
entered into substantially concurrently with the closing of the Omni Acquisition and cash on hand. The unaudited pro forma financial information may not reflect all of the costs
that are expected to be incurred by the Company and Omni in connection with the transactions.
Prior to the Omni Acquisition, Omni was a privately-held company and its new obligations of being a part of a public company may require significant resources and
management attention.
Upon the closing of the Omni Acquisition, Omni and its subsidiaries became subsidiaries of the Company, and now need to comply with the Sarbanes-Oxley Act of
2002, as amended (“Sarbanes-Oxley”) and the rules and regulations subsequently implemented by the SEC and other regulatory bodies. As a private company, Omni’s internal
controls were not designed to be in compliance with Sarbanes-Oxley or any other public company requirements. We will need to ensure that Omni establishes and maintains
effective disclosure controls as well as internal controls and procedures for financial reporting, and such compliance efforts may be costly and may divert the attention of
management. In the past, Omni identified significant deficiencies in the adequacy of its internal controls. We cannot assure you that, in the future, material weaknesses will not
be identified that would cause management to change its current conclusion as to the effectiveness of the combined company’s internal controls. If we fail to create and
maintain effective internal controls at Omni and its subsidiaries after the Omni Acquisition, we could report material weaknesses in the future, which would indicate that there
is a reasonable possibility that our financial statements do not accurately reflect our financial condition.
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We will be required to pay Omni Holders for certain tax savings we may realize, and we expect that the payments we will be required to make may be substantial.
In connection with the closing of the Omni Acquisition, the Company, Opco, Omni Holders and certain other parties entered into the Tax Receivable Agreement,
which sets forth the agreement among the parties regarding the sharing of certain tax benefits realized by the Company as a result of the transactions. Pursuant to the Tax
Receivable Agreement, we will be generally obligated to pay certain Omni Holders 83.5% of (a) the total tax benefit that we realize as a result of increases in tax basis in
Opco’s assets resulting from certain actual or deemed distributions and the future exchange of units of Opco for shares of securities of the Company (or cash) pursuant to the
Opco’s limited liability company agreement, (b) certain pre-existing tax attributes of certain Omni Holders that are corporate entities for tax purposes, (c) the tax benefits that
we realize from certain tax allocations that correspond to items of income or gain required to be recognized by certain Omni Holders, and (d) other tax benefits attributable to
payments under the tax receivable agreement. Payment obligations under the Tax Receivable Agreement will rank pari passu with all unsecured obligations of the Company but
senior to any future tax receivable or similar agreement entered into by the Company. These increases in existing tax basis and tax basis adjustments generated over time may
reduce the amount of tax that the combined company would otherwise be required to pay in the future, although the IRS may challenge all or part of the validity of that tax
basis, and a court could sustain such a challenge. Actual tax benefits realized by the combined company may differ from tax benefits calculated under the Tax Receivable
Agreement as a result of the use of certain assumptions therein, including the use of an assumed weighted-average state and local income tax rate to calculate tax benefits.
The payment obligation under the Tax Receivable Agreement is an obligation of the Company and not of Opco. While the amount of existing tax basis, the anticipated
tax basis adjustments and the actual amount and utilization of tax attributes, as well as the amount and timing of any payments under the Tax Receivable Agreement, will vary
depending upon a number of factors, including the timing of exchanges of Opco units for securities of the Company, the applicable tax rate, the price of the applicable securities
of the Company at the time of exchanges, the extent to which such exchanges are taxable and the amount and timing of our income, we expect that the payments that we will be
required to make under the Tax Receivable Agreement may be substantial. The payments under the Tax Receivable Agreement are not conditioned on the exchanging holders of
Opco units or other Omni Holders continuing to hold ownership interests in us.
We may not have discovered undisclosed liabilities of Omni, if any.
In the course of the due diligence review of Omni that we conducted prior to the execution of the Merger Agreement, we may not have discovered, or may have been
unable to quantify, undisclosed liabilities of Omni and its subsidiaries, if any, and the Company will not be indemnified for any of these liabilities. If Omni has undisclosed
liabilities, we, as a successor owner, will be responsible for such undisclosed liabilities. Such undisclosed liabilities could have an adverse effect on the business, results of
operations, financial condition and cash flows of the Company after the closing of the Omni Acquisition.
Risks Relating to our Indebtedness
Our substantial indebtedness, including that incurred in connection with the Omni Acquisition, could adversely affect our financial health and our ability to execute our
business strategy.
As of December 31, 2023, we had paid down our long term indebtedness related to our Credit Facility originating in September 2017. However, as a result of the
consolidation of two variable interest entities created to finance the Omni Acquisition, we issued $725 million pursuant to a senior secured notes, $1,125 million in senior
secured term loans to be used to finance the Omni Acquisition which was completed in January 2024.
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In January 2024, we assumed $400 million pursuant to a senior secured revolving credit facility as part of the Omni Acquisition. We also assumed and refinanced
Omni’s $1,200 million obligation due under a senior secured first lien credit facility and $80 million under a revolving credit facility, and $245 million due under Omni’s
second lien secured subordinated term loan.
Our substantial indebtedness could have important consequences including:
increasing our vulnerability to adverse general economic and industry conditions;
exposing us to interest rate risk;
limiting our flexibility in planning for, or reacting to, changes in the economy and our industry;
placing us at a competitive disadvantage compared to competitors with less indebtedness;
•
•
•
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• making it more difficult to borrow additional funds in the future to fund growth, acquisitions, working capital, capital expenditures and other purposes; and
•
potentially requiring us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness. Thereby reducing the availability of our cash
flow to fund our other business needs.
We receive debt ratings from the major credit rating agencies in the U.S. Factors that may impact our credit ratings include debt levels, planned asset purchases or
sales and near‐term and long‐term production growth opportunities. Liquidity, asset quality, cost structure, reserve mix and commodity pricing levels could also be considered
by the rating agencies. While we are focused on maintaining ratings from these agencies, we may be unable to do so. Any downgrade in our credit rating or the ratings of our
indebtedness, or adverse conditions in the debt capital markets, could:
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adversely affect the trading price of, or market for, our debt securities;
increase interest expense under our facilities;
Increase the cost of, and adversely affect our ability to refinance, our existing debt; and
adversely affect our ability to raise additional debt.
The instruments governing our indebtedness impose certain restrictions on our business.
The instruments governing our indebtedness contain certain covenants imposing restrictions on our business. These restrictions may affect our ability to operate our
business, to plan for, or react to, changes in the market conditions or our capital needs and may limit our ability to take advantage of potential business opportunities as they
arise. The restrictions placed on us include maintenance of an interest coverage ratio and limitations on our ability to incur certain secured debt, enter into certain sale and lease‐
back transactions and consolidate, merge, sell or otherwise dispose of all or substantially all of our assets. In addition, the instruments contain customary events of default upon
the occurrence of which, after any applicable grace period, the indebtedness could be declared immediately due and payable. In such event, we may not have sufficient available
cash to repay such debt at the time it becomes due, or be able to refinance such debt on acceptable terms or at all. Any of the foregoing could materially adversely affect our
business, financial condition and results of operations.
Servicing our debt requires a significant amount of cash, and we may not have sufficient cash flow from our business to pay our substantial debt.
Our ability to make scheduled payments of the principal of, to pay interest on, and to refinance our debt, depends on our future performance, which is subject to
economic, financial, competitive and other factors. Our business may not continue to generate cash flow from operations in the future sufficient to satisfy our obligations under
our current indebtedness and any future indebtedness we may incur and to make necessary capital expenditures. If we are unable to generate such cash flow, we may be required
to adopt one or more alternatives, such as reducing or delaying investments or capital expenditures, selling assets, refinancing or obtaining additional equity capital on terms that
may be onerous or highly dilutive. Our ability to refinance our outstanding indebtedness or future indebtedness will depend on the capital markets and our financial condition at
such time. We may not be able to engage in any of these activities or engage in these activities on desirable terms when needed, which could result in a default on our
indebtedness.
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Risks Relating to Information Technology and Systems
If we fail to maintain our information technology systems, or if we fail to successfully implement new technology or enhancements, we may be at a competitive
disadvantage and experience a decrease in revenues.
We rely heavily on our information technology systems to efficiently run our business, and they are a key component of our growth strategy and competitive
advantage. We, our customers and third parties increasingly store and transmit data by means of connected information technology systems. We expect our customers to
continue to demand more sophisticated, fully integrated information systems from their transportation providers. To keep pace with changing technologies and customer
demands, we must correctly interpret and address market trends and enhance the features and functionality of our information technology systems in response to these trends,
which may lead to significant ongoing software development costs. We may be unable to accurately determine the needs of our customers and the trends in the transportation
services industry or to design and implement the appropriate features and functionality of our information technology systems in a timely and cost-effective manner, which
could put us at a competitive disadvantage and result in a decline in our efficiency, decreased demand for our services and a corresponding decrease in our revenues. In
addition, we could incur software development costs for technology that is ultimately not deployed, and thus would require us to write-off these costs, which would negatively
impact our financial results. Furthermore, as technology improves, our customers may be able to find alternatives to our services for matching shipments with available freight
hauling capacity.
Our information technology systems can also play an integral role in managing our internal freight and transportation information and creating additional revenue
opportunities, including assessing available backhaul capacity. A failure to capture and utilize our internal freight and transportation information may impair our ability to
service our existing customers or grow revenue.
Our information technology systems are dependent upon cloud infrastructure providers, software-as-a-service providers, global communications providers, web
browsers, telephone systems and other aspects of the internet infrastructure that have experienced significant system failures and outages in the past. While we take measures to
ensure our major systems have redundant capabilities, our systems are susceptible to outages from fire, floods, power loss, telecommunications failures, data leakage, human
error, break-ins, cyber-attacks and similar events. Though it is difficult to predict, the occurrence of any of these events could disrupt or damage our information technology
systems and hamper our internal operations, impede our customers’ access to our information technology systems and adversely impact our customer service, volumes, and
revenues and result in increased cost. In addition, we may be required to incur significant costs to protect against damage caused by these disruptions or security breaches in the
future.
Our business is subject to cybersecurity risks.
Our operations depend on effective and secure information technology systems. Threats to information technology systems, including as a result of cyber-attacks and
cyber incidents continue to grow. Cybersecurity risks could include, but are not limited to, malicious software, attempts to gain unauthorized access to our data and the
unauthorized release, corruption or loss of our data and personal information, interruptions in communication, loss of our intellectual property or theft of our sensitive or
proprietary technology, loss or damage to our data delivery systems, or other electronic security, including with our property and equipment. The security risks associated with
information technology systems have increased in recent years because of the increased sophistication, activities and evolving techniques of perpetrators of cyber-attacks.
These cybersecurity risks could:
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Disrupt our operations and damage our information technology systems;
Subject us to various legal claims, penalties and fees by third parties;
Negatively impact our ability to compete;
Enable the theft or misappropriation of funds;
Cause the loss, corruption or misappropriation of proprietary or confidential information, expose us to litigation; and
Result in injury to our reputation, downtime, loss of revenue, and increased costs to prevent, respond to or mitigate cybersecurity events.
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For example, in December 2020, we detected a ransomware incident (the “Ransomware Incident”) impacting our operational and information technology systems,
which caused service delays for our customers. If another cybersecurity event occurs, such as the Ransomware Incident, it could harm our business and reputation and could
result in a loss of customers. Likewise, data privacy breaches by employees and others who access our systems may pose a risk that sensitive customer or vendor data may be
exposed to unauthorized persons or to the public, adversely impacting our customer service, employee relationships and our reputation. Furthermore, any failure to comply with
data privacy, security or other laws and regulations could result in claims, legal or regulatory proceedings, inquires or investigations.
While we continue to make efforts to evaluate and improve our systems and particularly the effectiveness of our security program, procedures and systems, it is
possible that our business, financial and other systems could be compromised, which could go unnoticed for a prolonged period of time, and there can be no assurance that the
actions and controls that we implement, or we cause third-party service providers to implement, will be sufficient to protect our systems, information or other property.
Additionally, customers or third parties upon whom we rely on face similar threats, which could directly or indirectly impact our business and operations. The occurrence of a
cyber-incident or attack could have a material adverse effect on our business, financial condition and results of operations. For more information about our cybersecurity
oversight, see “Item 1C, Cybersecurity”.
Issues related to the intellectual property rights on which our business depends, whether related to our failure to enforce our own rights or infringement claims brought by
others, could have a material adverse effect on our business, financial condition and results of operations.
We use both internally developed and purchased technologies in conducting our business. Whether internally developed or purchased, it is possible that users of these
technologies could be claimed to infringe upon or violate the intellectual property rights of third parties. In the event that a claim is made against us by a third party for the
infringement of intellectual property rights, a settlement or adverse judgment against us could result in increased costs to license the technology or a legal prohibition against our
using the technology. Thus, our failure to obtain, maintain or enforce our intellectual property rights could have a material adverse effect on our business, financial condition
and results of operations.
We rely on a combination of intellectual property rights, including patents, copyrights, trademarks, domain names, trade secrets, intellectual property licenses and other
contractual rights, to protect our intellectual property and technology. Any of our owned or licensed intellectual property rights could be challenged, invalidated, circumvented,
infringed or misappropriated; our trade secrets and other confidential information could be disclosed in an unauthorized manner to third parties; or we may fail to secure the
rights to intellectual property developed by our employees, contractors and others. Efforts to enforce our intellectual property rights may be time-consuming and costly, distract
management’s attention and divert our resources, and ultimately be unsuccessful. Moreover, should we fail to develop and properly manage future intellectual property, this
could adversely affect our market positions and business opportunities.
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Risks Relating to Regulatory Environment
A determination by regulators that our Leased Capacity Providers or third-party motor carriers are employees rather than independent contractors could expose us to
various liabilities and additional ongoing expenses, and related litigation could subject us to substantial costs, which could have a material adverse effect on our results of
operations and our financial condition.
At times, the Internal Revenue Service, the Department of Labor and state authorities have asserted that independent contractor transportation capacity providers like
our Leased Capacity Providers and third-party motor carriers are “employees,” rather than “independent contractors.” For example, the Department of Labor recently adopted a
final rule for determining whether a worker is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”), Similarly, the California Assembly Bill 5
(“California AB5”) provides a test for determining worker classification that is broadly viewed as expanding the scope of employee relationships and narrowing the scope of
independent contractor relationships. Although no enforcement actions under California AB5 have been asserted against the Company, if the State of California seeks to re-
classify our use of our Leased Capacity Providers or ISPs as employees, that result could materially increase our exposure under a variety of federal and state tax, workers’
compensation, unemployment benefits, labor, employment and tort laws, as well as our potential liability for employee benefits. In addition, such changes may be applied
retroactively, and if so, we may be required to pay additional amounts to compensate for prior periods. Any of the above increased costs would adversely affect our business
and operating results. In addition, California AB5 has been the subject of widespread national discussion and it is possible that other jurisdictions may enact similar laws.
A determination by regulators that some or all of our Leased Capacity Providers or third-party motor carriers are employees rather than independent contractors could
expose us to various liabilities and additional ongoing expenses, including but not limited to, the cost of assets to be operated by employee drivers, employment-related
expenses such as workers’ compensation insurance coverage and reimbursement of work-related expenses. Our exposure could include prior period compensation, as well as
potential liability for employee benefits and tax withholdings. In addition, the topic of the classification of individuals as employees or independent contractors has gained
increased attention among the plaintiffs’ bar and certain states have recently seen numerous class action lawsuits filed against transportation companies that engage independent
contractors, some of which have resulted in significant damage awards and/or monetary settlements for workers who have been allegedly misclassified as independent
contractors. The legal and other costs associated with any of these matters can be substantial and could have a material adverse effect on our results of operations and our
financial condition.
Claims for property damage, personal injuries or workers’ compensation and related expenses could significantly reduce our earnings.
Under DOT regulations, we are liable for bodily injury and property damage caused by Leased Capacity Providers and employee drivers while they are operating
equipment under our various motor carrier authorities. The potential liability associated with any accident can be severe and occurrences are unpredictable.
For vehicle liability, we retain a portion of the risk. Below is a summary of our risk retention on vehicle liability insurance coverage maintained by us up to $10,000
(in thousands):
Expedited Freight
LTL business $
Truckload business $
LTL, Truckload and Intermodal businesses $
Risk Retention
Frequency
Layer
Policy Term
5,000 Occurrence/Accident¹
5,000 Occurrence/Accident¹
5,000
Policy Term Aggregate²
$0 to $5,000
$0 to $5,000
$5,000 to $10,000
10/1/2023 to 10/1/2024
10/1/2023 to 10/1/2024
10/1/2023 to 10/1/2024
Intermodal
¹ For each and every accident/incident, the Company is responsible for damages and defense up to these amounts, regardless of the number of claims associated with any accident/incident.
² During the Policy Term, the Company is responsible for damages and defense within the stated Layer up to the stated, aggregate amount of Company Risk Retention before insurance will contribute.
1,000 Occurrence/Accident¹
10/1/2023 to 10/1/2024
$0 to $1,000
$
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Also, from time to time, when brokering freight, we may face claims for the “negligent selection” of outside, contracted carriers that are involved in accidents, and we
maintain third-party liability insurance coverage with a $100 deductible per occurrence for our brokered services. Additionally, we maintain workers’ compensation insurance
with a self-insured retention of $500 per occurrence. We cannot guarantee that our self-insurance retention levels will not increase and/or that we may have to agree to more
unfavorable policy terms as a result of market conditions, poor claims experience or other factors. We could incur claims in excess of our policy limits or incur claims not
covered by our insurance. Any claims beyond the limits or scope of our insurance coverage may have a material adverse effect on us. Because we do not carry “stop loss”
insurance, a significant increase in the number of claims that we must cover under our self-insurance retainage could adversely affect our profitability. In addition, we may be
unable to maintain insurance coverage at a reasonable cost or in sufficient amounts or scope to protect us against losses.
We face risks related to self-insurance and third-party insurance that can be volatile to our earnings.
We self-insure a significant portion of our claim’s exposure and related expenses for cargo loss, employee medical expense, bodily injury, workers’ compensation and
property damage, and maintain insurance with insurance companies above our limits of self-insurance. Self-insurance retention and other limitations are detailed in Part II, Item
7, under “Self-Insurance Loss Reserves.” Because of these significant self-insured exposures, insurance and claims expense may fluctuate significantly from period to period.
Additionally, our ability to obtain and maintain adequate insurance and the cost of such insurance may be affected by significant claims and conditions in the insurance market
over which we have no control. Historically, the trucking industry has experienced significant increases in the cost of liability insurance and in the median verdict of trucking
accidents. If the cost of insurance increases, we may decide to discontinue certain insurance coverage, reduce our level of coverage or increase our deductibles/retentions to
offset the cost increase. In addition, our existing types and levels of insurance coverage could become difficult or impossible to obtain in the future. The occurrence of an event
that is not fully covered by insurance, the loss of insurance coverage or a material increase in the cost of insurance could have a material adverse effect on our business,
financial condition, results of operations and cash flows.
We accrue for the costs of the uninsured portion of pending claims, based on the nature and severity of individual claims and historical claims development trends.
Estimating the number and severity of claims, as well as related judgment or settlement amounts is inherently difficult. We may fail to establish sufficient insurance reserves
and adequately estimate for future insurance claims. This, along with legal expenses, incurred but not reported claims, and other uncertainties can cause unfavorable differences
between actual self-insurance costs and our reserve estimates.
Our failure to comply with various applicable federal and state employment and labor laws and regulations could have a material, adverse impact on our business,
financial condition and results of operations.
Various federal and state employment and labor laws and regulations govern our relationships with our employees. These laws and regulations relate to matters such as
employment discrimination, wage and hour laws, requirements to provide meal and rest periods or other benefits, family leave mandates, employee and independent contractor
classification rules, requirements regarding working conditions and accommodations to certain employees, citizenship or work authorization and related requirements,
insurance and workers’ compensation rules, healthcare laws, scheduling notification requirements and anti-discrimination and anti-harassment laws. While the scope of these
laws and regulations are subject to change in all jurisdictions, California routinely makes changes to the scope of such laws and regulations, many of which may be strictly
enforced, and some of which have been in the past, and may be in the future, implemented on a retrospective basis (meaning we may not have an opportunity to change our
employment practices in advance to avoid non-compliance). Complying with these laws and regulations, including ongoing changes thereto, subjects us to substantial expense
and non-compliance could expose us to significant liabilities. In particular, we have been subject to employment litigation with respect to classification and wage and hour
issues in the past and have wage and hour litigation currently pending. While we have not incurred material losses with respect to this litigation in the past, we may be subject to
material claims in the future.
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We operate in a regulated industry, and increased costs of compliance with, or liability for violation of, existing or future regulations and enforcement could have a
material adverse effect on our business.
The DOT and various state and federal agencies have been granted broad regulatory powers over our business in the United States, and we are licensed by the DOT
and U.S. Customs. Additionally, our Canada business activities are subject to the similar laws and regulations of Canada and its provinces, including the effects of the United
States-Mexico-Canada Agreement (“USMCA”), a trade agreement between the United States, Mexico and Canada to replace the North American Free Trade Agreement
(“NAFTA”), which took effect on July 1, 2020. There can be no assurance that the ongoing transition from NAFTA to the USMCA will not adversely impact our business or
disrupt our operations. If we are found to be out of compliance with any applicable regulations, our licenses may be revoked, or we could be subject to substantial fines or
penalties and to civil and criminal liability. The transportation industry is subject to legislative and regulatory changes that can affect the economics of our business by requiring
changes in operating practices or influencing the demand for, and the cost of providing, transportation services.
The Federal Motor Carrier Safety Administration (“FMCSA”) established the Compliance, Safety, Accountability initiative (“CSA”) motor carrier oversight program
under which drivers and fleets are evaluated based on certain safety-related standards. The FMCSA monitors hours of service (“HOS”) regulations which govern the work hours
of commercial drivers and adopted a rule that requires commercial drivers to maintain hours-of-service records with an electronic logging device. At any given time, there are
also other proposals for safety-related standards that are pending legislative or administrative approval or adoption. If additional or more stringent standards are adopted, such
may result in a reduction of the pool of qualified drivers available to us and to other motor carriers in our industry. If we experience safety and fitness violations, our safety and
fitness scores could be adversely impacted, and our fleets could be ranked poorly as compared to our peers. A reduction in our safety and fitness scores or those of our
contracted drivers could also reduce our competitiveness in relation to other companies that have higher scores.
In addition, there may be changes in applicable federal or state tax or other laws or interpretations of those laws. If this happens, we may incur additional taxes, as well
as higher workers’ compensation and employee benefit costs, and possibly penalties and interest for prior periods. This could have an adverse effect on our results of operations.
The FMCSA’s CSA and SMS initiatives could adversely impact our ability to hire qualified drivers or contract with qualified Leased Capacity Providers or third-party
motor carriers, meet our growth projections and maintain our customer relationships, each of which could adversely impact our results of operations.
The FMCSA’s CSA is an enforcement and compliance program designed to monitor and improve commercial motor vehicle safety by measuring the safety record of
both the motor carrier and the driver. These measurements are scored and used by the FMCSA to identify potential safety risks and to direct enforcement action. CSA scores are
dependent upon safety and compliance experience, which could change at any time. In addition, the safety standards prescribed in CSA could change and our ability as well as
third-party motor carriers’ ability to maintain an acceptable score could be adversely impacted. Public disclosure of certain CSA scores was restricted through the enactment of
the Fixing America’s Surface Transportation Act of 2015 (the “FAST Act”) on December 4, 2015; however, the FAST Act does not restrict public disclosure of all data
collected by the FMCSA. The FMCSA is currently reviewing CSA methodology to address deficiencies identified by the National Academy of Sciences, including the
possibility of weak or negative correlation between current safety improvement categories and vehicle crash risk. Nevertheless, if we receive unacceptable CSA scores, and this
data is made available to the public, our relationships with our customers could be damaged, which could result in a loss of business.
Likewise, the requirements of SMS could also shrink the industry’s pool of drivers as those with unfavorable scores could leave the industry. As a result, the costs to
attract, train and retain qualified drivers, Leased Capacity Providers or third-party carriers could increase. In addition, a shortage of qualified drivers could increase driver
turnover, decrease asset utilization, limit growth and adversely impact our results of operations.
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We are subject to various environmental laws and regulations, including legislative and regulatory responses to climate change; and costs of compliance with, or liabilities
for violations of, existing or future laws and regulations could significantly increase our costs of doing business.
Our operations are subject to environmental laws and regulations dealing with, among other things, the handling of hazardous materials, discharge and retention of
storm water, and emissions from our vehicles. We operate in industrial areas, where truck terminals and other industrial activities are located, and where groundwater or other
forms of environmental contamination may have occurred. Our operations involve the risks of fuel spillage, environmental damage, and hazardous waste disposal, among
others. If we are involved in a spill or other accident involving hazardous substances, or if we are found to be in violation of applicable environmental laws or regulations, it
could significantly increase our cost of doing business. Under specific environmental laws and regulations, we could be held responsible for all of the costs relating to any
contamination at our past or present terminals and at third-party waste disposal sites. If we fail to comply with applicable environmental laws and regulations, we could be
subject to substantial fines or penalties and to civil and criminal liability.
In addition, as societal concerns regarding climate change and carbon emissions become more prevalent, federal and local governments and our customers are taking
action in response. This increased focus on sustainability may result in new regulations and customer requirements that could negatively affect our financial results. This could
cause us to incur additional direct costs or to make changes to our operations in order to comply with any new regulations and customer requirements, as well as increased
indirect costs or loss of revenue resulting from, among other things, our customers incurring additional compliance costs that affect our costs and revenues. We could also lose
revenue if our customers divert business from us because we have not complied with their sustainability requirements or accommodated related requests. These costs, changes
and loss of revenue could have a material adverse effect on our business, financial condition and results of operations. Even without any new legislation or regulation, increased
public concern regarding greenhouse gases emitted by transportation carriers could harm the reputations of companies operating in the transportation logistics industries and
shift consumer demand toward more locally sourced products and away from our services.
Risks and requirements related to transacting business in foreign countries may result in increased liabilities, including penalties and fines as well as reputational harm.
As a result of the Omni Acquisition, we will be exposed to trade and economic sanctions and other restrictions imposed by the United States or other governments or
organizations. The U.S. Departments of Justice, Commerce, State and Treasury, and other foreign authorities have a broad range of civil and criminal penalties they may seek to
impose against corporations and individuals for violations of economic sanctions laws, export control laws, the Foreign Corrupt Practices Act (“FCPA”) and other federal
statutes and regulations, including the International Traffic in Arms Regulations and those established by the Office of Foreign Assets Control (“OFAC”), and similar or more
restrictive foreign laws, rules and regulations, which may also apply to the combined company. Under these laws and regulations, the government may require export licenses,
or impose restrictions that would require modifications to business practices, including cessation of business activities in sanctioned countries or with sanctioned persons or
entities, and modifications to compliance programs, which may increase compliance costs. Failure to implement changes may subject the combined company to fines, penalties
and other sanctions.
We have in place policies related to FCPA, OFAC, export controls and similar laws and regulations, but we cannot assure you that our employees, consultants, sales
agents, or associates will not engage in unlawful conduct for which we may be held responsible or that our business partners will not engage in conduct that could affect their
ability to perform their contractual obligations and result in our being held liable for such conduct. Violation of laws or regulations may result in increased liabilities including
penalties and fines as well as reputational harm.
38
We may be subject to governmental export and import controls that could impair its ability to compete in international markets and subject it to liability if it violates such
controls.
There are political and trade tensions among a number of the world’s major economies in which the combined company will operate. These tensions have resulted in
the implementation of tariff and non-tariff trade barriers and sanctions, including the use of export control restrictions and sanctions against certain countries, individuals and
companies. Any increase in the use of export control restrictions and sanctions to target certain countries, regions and entities or any expansion of the extraterritorial jurisdiction
of export control laws could impact our ability to compete globally. In addition, measures adopted by an affected country to counteract impacts of another country’s actions or
regulations could lead to legal liability to multinational companies, including the combined company. For example, in January 2021, China adopted a blocking statute that,
among other matters, entitles Chinese entities incurring damages from a multinational’s compliance with foreign laws to seek civil remedies. In February 2022, due to the
military conflicts between Russia and Ukraine, several major economies, including the United States, the United Kingdom and the European Union imposed economic
sanctions against Russia and certain Russian persons and entities. Depending on future developments of global trade tensions, such regulations, rules or measures may have an
adverse impact on the combined company’s business and operations, and it may incur significant legal liability and financial losses as a result.
Any change in export or import regulations, economic sanctions or related legislation or change in the countries, governments, persons, vessels or technologies,
including semiconductors, targeted by such regulations, could result in decreased use of the combined company’s services by existing or potential users with international
operations. Any decreased use of the combined company’s services or limitation on the combined company’s ability to export its customers’ products would likely adversely
affect the combined company’s business, operating results and financial results.
If our employees were to unionize, our operating costs would likely increase.
None of our employees are currently represented by a collective bargaining agreement. However, we have no assurance that our employees will not unionize in the
future, which could increase our operating costs and force us to alter our operating methods. This could have a material adverse effect on our operating results.
Our charter and bylaws and provisions of Tennessee law could discourage or prevent a takeover that may be considered favorable.
Our charter and bylaws and provisions of Tennessee law may discourage, delay or prevent a merger, acquisition or change in control that may be considered favorable.
These provisions could also discourage proxy contests and make it more difficult for shareholders to elect directors and take other corporate actions. Among other things, these
provisions:
•
•
authorize us to issue preferred stock, the terms of which may be determined at the sole discretion of the Board and may adversely affect the voting or economic rights of
our shareholders; and
establish advance notice requirements for nominations for election to the Board and for proposing matters that can be acted on by shareholders at a meeting.
Our charter and bylaws and provisions of Tennessee law may discourage transactions that otherwise could provide for the payment of a premium over prevailing
market prices for our Common Stock and also could limit the price that investors are willing to pay in the future for shares of our Common Stock.
39
Item 1B. Unresolved Staff Comments
None.
40
Item 1C. Cybersecurity
We recognize the critical importance of cybersecurity in protecting our business and our stakeholders’ information. We are committed to maintaining a robust
cybersecurity risk management program and implementing a comprehensive strategy to mitigate cyber threats and vulnerabilities. Our cybersecurity policies, standards,
processes and practices are fully integrated into our overall enterprise risk management program, as described below. This disclosure outlines our cybersecurity risk
management approach, strategy, and governance structure.
The Board and the Audit Committee of the Board (“Audit Committee”) are actively involved in oversight of our cybersecurity risk management. In general, we seek to
address cybersecurity risks through a comprehensive, cross-functional approach that is focused on protecting our security and the information that we collect as well as
proactively identifying and preventing cybersecurity threats.
Cybersecurity Risk Management and Strategy
Our cybersecurity program is focused on protecting critical assets, including data, systems and applications; minimizing the impact of cyberattacks; understanding and
preparing for the evolving threat landscape and complying with applicable law. The program includes the following key areas:
• Governance: As discussed in more detail under the heading “Governance,” the Board delegated oversight of cybersecurity risk management to the Audit
Committee, which regularly interacts with our Chief Information Security Officer (“CISO”), other members of management and relevant management
committees and councils, including the Information Security Governance team and the Cybersecurity Risk Management team.
• Collaborative Approach: We have implemented a comprehensive, cross-functional approach to identifying, preventing and mitigating cybersecurity threats and
incidents, while also continuously improving our cybersecurity program and maintaining a strong cybersecurity posture. Key to this approach is to broadly
assess the potential impact of cybersecurity incidents on business operations and financial stability as well as any legal and regulatory requirements regarding
cybersecurity.
• Technical Safeguards: We deploy technical safeguards that are designed to protect our information systems from cybersecurity threats, including firewalls,
intrusion detection and prevention systems, encryption, access controls, secure coding practices and other security controls, which are regularly evaluated and
improved through vulnerability assessments and penetration testing designed to identify weaknesses in our systems and networks.
• Incident Response and Recovery Planning: We have a dedicated Incident Response Team dedicated to responding to and recovering from cybersecurity
incidents.
• Third-Party Risk Management: We maintain a comprehensive, risk-based approach to identifying and overseeing cybersecurity risks presented by third parties,
including our vendors who handle our data and systems through due diligence and vendor assessments.
• Education and Awareness: We provide regular, training for all employees and contractors, which is designed to equip our personnel with effective tools to
address cybersecurity threats, and to communicate our evolving information security policies, standards, processes and practices.
We regularly identify and assess cybersecurity risks through a comprehensive program that includes:
• Vulnerability assessments and penetration testing: We conduct regular vulnerability assessments and penetration testing to identify and address weaknesses in
our systems and networks.
• Threat intelligence: We subscribe to threat intelligence feeds and maintain relationships with security partners to stay informed about emerging cyber threats.
• Third-party risk assessments: We engage various outside consultants, including contractors, assessors, auditors, outside attorneys and other third parties to assist
us in identifying, assessing and managing cybersecurity risks. We conduct initial and regular due diligence on third-party vendors who handle our data and
systems.
• Business impact analysis: We regularly assess the potential impact of cyberattacks on our business operations and financial stability.
• Legal and regulatory risk assessment: We assess the legal and regulatory risks associated with cybersecurity incidents and ensure compliance with applicable
laws and regulations.
41
Governance
As discussed above, our cybersecurity governance structure is integrated into several facets of us, which include:
• Board of Directors: The Board has ultimate oversight responsibility for cybersecurity. The Board has delegated to the Audit Committee the responsibility for
monitoring and overseeing our cybersecurity and other information technology risks, controls, strategies and procedures.
• Audit Committee: The Audit Committee is responsible for monitoring the effectiveness of our information system controls and security, including a periodic
review of our cybersecurity and other information technology risks, controls, initiatives and action plans.
• Chief Information Security Officer (CISO): Casey O’Malley is our CISO and is responsible for the day-to-day management of the cybersecurity program. Casey
has had a distinguished career holding IT management positions since 2015 and has been employed in the cybersecurity field since 2001. Casey holds a
Bachelor of Science in Information Technology from Penn State University.
• Information Security Governance: The Information Security Governance team is comprised of our senior executives and oversees the development and
implementation of the cybersecurity strategy.
• Cybersecurity Risk Management Team: The Cybersecurity Risk Management Team is responsible for identifying, assessing, and mitigating cybersecurity risks.
• Incident Response Team: The Incident Response Team is responsible for responding to and recovering from cyberattacks.
The management team reports to the Board on cyber risk quarterly. Reports include:
• Overall cybersecurity posture: Current state of our security controls and identified vulnerabilities.
• Incident reports: Summary of recent cyber incidents, including their nature, impact, and mitigation efforts.
• Risk assessments: Updated assessments of potential cyber threats and their potential impact on us.
• Security budget and resource allocation: Plans and investments for maintaining and enhancing our cybersecurity program.
The management team is required to update the Board immediately once a material breach occurs. The Board is provided timely updates until the incident is
considered resolved.
Management evaluates cyber incidents based on their materiality, considering factors such as:
• Financial impact: Potential losses in revenue, profits, or assets.
• Reputational damage: Impact on our brand image and customer trust.
• Regulatory compliance concerns: Potential violations of data privacy regulations or other legal requirements.
• Operational disruption: Impact on business continuity and ability to deliver services.
Based on the materiality assessment, we determine the appropriate disclosure to regulatory agencies, stakeholders, and the public, ensuring transparency and
minimizing potential harm.
Cybersecurity threats, including as a result of any previous cybersecurity incidents have in the past affected our business. On December 15, 2020, we detected a
ransomware incident (the “Ransomware Incident”) impacting our operational and information technology systems, which caused service delays for our customers. We suffered
unexpected costs and impacts from the Ransomware Incident and may in the future incur costs in connection with any future cybersecurity incidents, including infrastructure
investments, remediation efforts and legal claims resulting from the above. It is reasonably likely to affect us, including our business strategy, results of operations or financial
condition. For more information about our cybersecurity risks, see Item 1A, Risk Factors - “Our business is subject to cybersecurity risks.”
42
Item 2. Properties
Our headquarters are in Greeneville, Tennessee and we have additional general offices in Atlanta, Georgia and Columbus, Ohio. As of December 31, 2023, we owned six
facilitates, including the Columbus, Ohio general office and lease 152 facilities, including the general office in Atlanta, Georgia and our corporate headquarters in Greeneville,
Tennessee. We consider each of our facilities to be in good condition and adequate for its present use. We believe in the event that we need additional facilities, we will be able
to purchase or lease facilities on terms and costs similar to those of competitors within the transportation industry.
Our principal facilities as of December 31, 2023 were as follows:
Location
Atlanta, Georgia
Chicago, Illinois
Columbus, Ohio
Columbus, Ohio
Dallas, Texas
Los Angeles, California
Miami, Florida
Newark, New Jersey
Phoenix, Arizona
San Francisco, California
Segment
Expedited Freight
Expedited Freight
Expedited Freight
Corporate
Expedited Freight
Expedited Freight
Expedited Freight
Expedited Freight
Expedited Freight
Expedited Freight
Leased
(square feet)
253,000
111,000
133,000
103,000
136,000
Owned
(square feet)
152,000
125,000
146,000
240,000
223,000
Number of Doors
115
108
175
134
56
39
36
24
22
In addition to our owned and leased facilities, we partner with independent agents in 30 cities where the agents handle the freight for us on a commission basis.
Item 3. Legal Proceedings
On September 26, 2023, Rodney Bell, Michael A. Roberts and Theresa Woods, three shareholders of Forward Air, filed a complaint (the “Shareholder Complaint”)
against us and certain of its directors and officers in the Third District Chancery Court sitting in Greeneville, Tennessee. The Shareholder Complaint alleges, among other
things, that our 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. The court initially granted a temporary restraining order enjoining the transactions contemplated by the Merger Agreement but
later dissolved it on October 25, 2023. Thereafter and as described below, on January 25, 2024, the parties to the Amended Merger Agreement completed the Omni Acquisition.
The case remains pending.
On October 31, 2023, Omni filed a complaint (the “Omni Complaint”) against us and certain of its direct and indirect subsidiaries in the Court of Chancery in the State
of Delaware. The Omni Complaint alleged, among other things, that we breached our obligation to close the transactions contemplated by the Merger Agreement and sought
specific performance to compel us to close and related declaratory relief. On January 22, 2024, we, Omni, and certain other parties entered into a Settlement and Release
Agreement (the “Settlement Agreement”), settling all litigation claims that were the subject of proceedings pending in the matter of Omni Newco, LLC v Forward Air
Corporation, et al, No. 2023-1104 (Del. Ch.) (the “Transaction Litigation”) asserted under the Merger Agreement among us, Omni and the other parties thereto, and stipulating
to the dismissal of the Transaction Litigation. Pursuant to the Settlement Agreement, the parties agreed to enter into Amendment No. 1. On January 25, 2024, we, Omni, and
certain other parties completed the Omni Acquisition. For more information about the Omni Acquisition, refer to “Item 7 - Management’s Discussion and Analysis of Financial
Condition and Results of Operations – Omni Acquisition.”
43
From time to time, we are also a party to other litigation incidental to and arising in the normal course of our business, most of which involve claims for personal injury
and property damage related to the transportation and handling of freight, or workers’ compensation. For more information about our insurance program and legal proceedings,
see Item 1A, Risk Factors - “Claims for property damage, personal injuries or workers’ compensation and related expenses could significantly reduce our earnings.” and “We
face risks related to self-insurance and third-party insurance that can be volatile to our earnings.”, and “Our failure to comply with various applicable federal and state
employment and labor laws and regulations could have a material, adverse impact on our business, financial condition and results of operations.”, Item 7, Management’s
Discussion and Analysis of Financial Condition and Results of Operations - Critical Accounting Estimates, and Item 8, Financial Statements and Supplementary Data -
Commitments and Contingencies.
Item 4. Mine Safety Disclosures
Not applicable.
Item 5. Market for Registrant’s Common Equity, Related Shareholder Matters and Issuer Purchases of Equity Securities
Part II
Our Common Stock trades on The Nasdaq Global Select Stock Market™ under the symbol “FWRD.”
There were approximately 968 shareholders of record of our Common Stock as of March 12, 2024.
There are no material restrictions on our ability to declare dividends.
Unregistered Sales of Securities
None of our securities were sold during fiscal year 2023 without registration under the Securities Act.
Issuer Purchases of Equity Securities
The Company did not repurchase any of its equity securities during the three months ended December 31, 2023.
44
Stock Performance Graph
The following graph compares the percentage change in the cumulative shareholder return on our Common Stock with The Nasdaq Trucking and Transportation
Stocks Index and The Nasdaq Global Select Stock Market™ Index commencing on the last trading day of December 2018 and ending on the last trading day of December
2023. The graph assumes a base investment of $100 made on December 31, 2018 and the respective returns assume reinvestment of all dividends. The comparisons in this graph
are required by the SEC and, therefore, are not intended to forecast or necessarily be indicative of any future return on our Common Stock.
The performance graph and related information shall not be deemed “soliciting material” or be “filed” with the Securities and Exchange Commission, nor shall such
information be incorporated by reference into any future filing under the Securities Act or the Exchange Act, except to the extent that the Company specifically incorporates it
by reference into such filing.
Forward Air Corporation
Nasdaq Trucking and Transportation Stocks Index
Nasdaq Global Select Stock Market Index
2018
2019
2020
2021
2022
2023
$
100 $
100
100
128 $
120
141
140 $
120
194
221 $
145
239
191 $
116
161
115
143
233
Item 6. [Reserved]
45
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations
This section of this Form 10-K generally discusses our results of operations and financial condition for the year ended December 31, 2023. For a discussion of similar
topics for the years ended December 31, 2022 and December 31, 2021, please refer to “Item 7 - Management's Discussion and Analysis of Financial Condition and Results of
Operations” in our Form 10-K, filed on March 1, 2023, which is incorporated herein by reference.
Overview
We are a leading asset-light freight provider of transportation services, including LTL, truckload and intermodal drayage services across the United States and in
Canada and Mexico. We offer premium services that typically require precision execution, such as expedited transit, delivery during tight time windows and special handling.
We utilize an asset-light strategy to minimize our investments in equipment and facilities and to reduce our capital expenditures.
Our services are classified into two reportable segments: Expedited Freight and Intermodal.
Our Expedited Freight segment provides expedited regional, inter-regional and national LTL services. Expedited Freight also offers customers local pick-up and
delivery and other services including truckload, shipment consolidation and deconsolidation, warehousing, customs brokerage and other handling. We plan to grow our LTL
geographic footprint through greenfield start-ups as well as through acquisitions.
Our Intermodal segment provides first- and last-mile high value intermodal container drayage services both to and from seaports and railheads. Intermodal also offers
dedicated contract and CFS warehouse and handling services, and in select locations, linehaul and LTL services. We plan to grow our Intermodal geographic footprint through
acquisitions as well as through greenfield start-ups where no suitable acquisition is available.
Our operations, particularly our network of hubs and terminals, represent substantial fixed costs. Consequently, our ability to increase our earnings depends in
significant part on our ability to increase the amount of freight and the revenue per pound or shipment for the freight shipped or moved through our network. Additionally, our
earnings depend on the growth of other services, such as LTL pickup and delivery, which will allow us to maintain revenue growth in a challenging freight environment. We
continue to focus on creating synergies across our services, particularly with services offered in our Expedited Freight reportable segment. Synergistic opportunities include the
ability to share resources, in particular our fleet resources.
We monitor and analyze a number of key operating statistics in order to manage our business and evaluate our financial and operating performance. These key
operating statistics are defined below and are referred to throughout the discussion of the financial results of our Expedited Freight and Intermodal reportable segments. Our key
operating statistics should not be interpreted as better measurements of our results than income from operations as determined under GAAP.
Within our Expedited Freight reportable segment, our primary revenue focus is to increase density, which is shipment and tonnage growth within our existing LTL
network. Increases in density allow us to maximize our asset utilization and labor productivity, which we measure over many different functional areas of our operations
including linehaul load factor and door pounds handled per hour. In addition to our focus on density and operating efficiencies, it is critical for us to obtain an appropriate yield,
which is measured as revenue per hundredweight, on the shipments we handle to offset our cost inflation and support our ongoing investments in capacity and technology.
Revenue per hundredweight is also a commonly-used indicator for general pricing trends in the LTL industry and can be influenced by many other factors, such as changes in
fuel surcharges, weight per shipment and length of haul. Therefore, changes in revenue per hundredweight may not necessarily indicate actual changes in underlying base rates.
We regularly monitor the components of our pricing, including base freight rates, accessorial charges and fuel surcharges. The fuel surcharge is generally designed to offset
fluctuations in the cost of the petroleum-based products used in our operations and is indexed to diesel fuel prices published by the U.S. Department of Energy. The impact of
fuel on our results of operations depends on the relationship between the applicable surcharge, the fuel efficiency of our Company drivers, and the load factor achieved by our
operation. Fluctuations in fuel prices in either direction could have a positive or negative impact on our margins, particularly in our LTL business where the weight of a
shipment subject to the fuel surcharge on a given trailer can vary materially. We believe our yield management process focused on account level profitability, and ongoing
improvements in operating efficiencies, are both key components of our ability to grow profitably.
46
The key operating statistics necessary to understand the operating results of our Expedited Fright reportable segment are described below in more detail:
Tonnage - Total weight of shipments in pounds. The level of freight tonnage is affected by economic cycles and conditions, customers’ business cycles, changes in
customers’ business practices and capacity in the truckload market.
Weight Per Shipment - Total pounds divided by the number of shipments. Fluctuations in weight per shipment can indicate changes in the mix of freight we receive
from our customers, as well as changes in the number of units included in a shipment. Generally, increases in weight per shipment indicate higher demand and overall
increased economic activity. Changes in weight per shipment can also be influenced by shifts between LTL and other modes of transportation, such as truckload, in
response to capacity, service and pricing issues. Fluctuations in weight per shipment generally have an inverse effect on our revenue per hundredweight, as a decrease in
weight per shipment will typically cause an increase in revenue per hundredweight.
Revenue Per Hundredweight - Network revenue per every 100 pounds of shipment weight. Our LTL transportation services are generally priced based on weight,
commodity, and distance. Our pricing policies are reflective of the services we provide, and can be influenced by competitive market conditions. Changes in the freight
profile factors such as average shipment size, average length of haul, freight density, and customer and geographic mix can impact the revenue per hundredweight. Fuel
surcharges and intercompany revenue between Network and Truckload are included in this measurement.
Revenue Per Shipment - Network revenue divided by the number of shipments. Fuel surcharges and intercompany revenue between Network and Truckload are
included in this measurement.
Average Length of Haul - Total miles between origin and destination service centers for all shipments, with miles based on the size of shipments. Length of haul is used
to analyze our tonnage and pricing trends for shipments with similar characteristics. Changes in length of haul generally have a direct effect on our revenue per
hundredweight, as an increase in length of haul will typically cause an increase in revenue per hundredweight.
Within our Intermodal reportable segment, our primary revenue focus is to increase the number of shipments. The key operating statistic necessary to understand the
operating results of our Intermodal reportable segment is described below in more detail:
Drayage Revenue Per Shipment - Intermodal revenue divided by the number of drayage shipments. Revenue derived from container freight station warehouse and
handling, and linehaul and LTL services is excluded from this measurement. Fuel surcharges and accessorial charges are included in this measurement.
Trends and Developments
Intermodal Acquisitions
In May 2022, we acquired certain assets and liabilities of Edgmon Trucking, LLC (“Edgmon”) for $40,993 and a potential earn-out of up to $5,000, based on the
achievement of certain profit contribution milestones over a nineteen month period, beginning May 31, 2022. The nineteen month period ended on December 31, 2023 and the
certain profit contribution milestones were not achieved during that period. Edgmon, headquartered in Kent, Washington, operates a terminal in Kent and a yard in Seattle,
servicing both the Port of Seattle and the Port of Tacoma. The acquisition of Edgmon marks our first Intermodal location on the West Coast, a key area of expansion in the
Intermodal strategic growth plan. The acquisition was funded using cash flows from operations. The results of Edgmon have been included in our consolidated financial
statements as of and from the date of acquisition. The associated goodwill has been included in our Intermodal reportable segment.
47
Expedited Freight Acquisitions
In January 2023, we acquired certain assets of Land Air Express, Inc. (“Land Air”) for $56,567. Land Air, headquartered in Bowling Green, Kentucky, offers a variety
of less-than-truckload services including guaranteed, standard, exclusive, same day, hot shot and pickup and delivery, and operates in over 25 terminals across the United
States. The acquisition of Land Air is expected to accelerate the expansion of our national terminal footprint, particularly in the middle part of the United States, and
strategically position us to better meet the current and future needs of customers. The acquisition was funded using cash flow from operations and proceeds from our credit
facility. The results of Land Air have been included in our Consolidated Financial Statements as of and from the date of acquisition. The associated goodwill has been included
in our Expedited Freight reportable segment.
Omni Acquisition
In January 2024, we acquired Omni for a combination of (a) $20 million in cash and (b) (i) common equity consideration representing 5,135 shares of our common
stock on an as-converted and as-exchanged basis and (ii) non-voting, convertible perpetual preferred equity consideration representing, if our shareholders approve, an
additional 8,880 shares of our common stock on an as-exchanged basis. Omni, headquartered in Dallas, Texas, is an asset-light, high-touch logistics and supply chain
management company with 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 U.S.-based customers operating both domestically and internationally.
See Note 3, Acquisitions, to our Consolidated Financial Statements for more information about our acquisitions.
Fuel
We depend heavily upon the availability of adequate diesel fuel supplies, and recently, fuel availability and prices have fluctuated significantly. Fuel availability and
prices can be impacted by factors beyond our control, such as natural or man-made disasters, adverse weather conditions, political events, economic sanctions imposed against
oil-producing countries or specific industry participants, disruptions or failure of technology or information systems, price and supply decisions by oil producing countries and
cartels, terrorist activities, armed conflict, tariffs, sanctions, other changes to trade agreements and world supply and demand imbalance. Through our fuel surcharge programs,
we have been able to mitigate the impact of fluctuations in fuel prices. Our fuel surcharge rates are set weekly based on the national average for fuel prices as published by the
U.S. Department of Energy and our fuel surcharge table. In periods of changing fuel prices, our fuel surcharges vary by different degrees and may not fully offset fuel price
fluctuations or may result in higher than expected increases in revenue. Fuel shortages, changes in fuel prices, and the potential volatility in fuel surcharge revenue may impact
our results of operations and overall profitability. Fuel surcharge revenue as a percentage of operating revenues decreased to 18.9% for the year ended December 31, 2023
compared to 19.3% for the year ended December 31, 2022, as a result of changes in fuel prices.
Economy
Our business is highly susceptible to changes in economic conditions. Our products and services are directly tied to the production and sale of goods and, more
generally, to the North American economy. Participants in the transportation industry have historically experienced cyclical fluctuations in financial results due to economic
recessions, downturns in the business cycles of customers, volatility in the prices charged by third-party carriers, interest rate fluctuations and other U.S. and global
macroeconomic developments. During economic downturns, reductions in overall demand for transportation services will likely reduce demand for our services and exert
downward pressure on our rates and margins. In periods of strong economic growth, overall demand may exceed the available supply of transportation resources. While this
may present an opportunity to increase economies of scale in our network and enhanced pricing and margins, these benefits may be lessened by increased network congestion
and operating inefficiencies.
48
Like other providers of freight transportation services, our business has been impacted by the macroeconomic conditions of the past year. Industry freight volumes, as
measured by the Cass Freight Index, decreased in 2023 compared to 2022. Transportation rates continued to decline throughout 2023 as carrier capacity exceeded shipper
demand in the United States. While recently elevated inventory levels have largely stabilized, shippers continue to closely monitor consumer spending and carefully manage
inventory restocking activities. Consecutive quarters of weak consumer demand have nearly eliminated the challenges from port congestion and transportation equipment
shortages as seen in prior years. Despite the weak demand, new vessel deliveries continue to add capacity and new vessel deliveries are expected to continue in the near term.
Recent global disruptions have impacted the capacity market, and the disruptions are expected to continue, although the timeline to resolution remains unclear. The air freight
market has seen an increase in capacity resulting from increased commercial flight activity to support elevated consumer travel. Intermodal volumes, heavily influenced by
United States imports, have declined in 2023 due to inflation, customer demand and a shift of spending by consumers from goods to services. For Truckload, the capacity
contraction has created a sustained market of depressed spot market truckload rates with modest signs of improvement. These trends drove a decline in the volume of freight
shipped by our customers and placed pressure on rates in a soft freight environment. While these trends have continued through the early months of 2024, industry projections
expect a slight improvement in the fundamentals within the freight market in the second half of 2024.
49
Results from Operations
Year Ended December 31, 2023 compared to Year Ended December 31, 2022
The following table sets forth our consolidated financial data for the years ended December 31, 2023 and 2022 (in thousands):
December 31, 2023
December 31, 2022
Change
Percent Change
Year Ended
Operating revenue:
Expedited Freight
Intermodal
Eliminations and other operations
Operating revenue
Operating expenses:
Purchased transportation
Salaries, wages, and employee benefits
Operating leases
Depreciation and amortization
Insurance and claims
Fuel expense
Other operating expenses
Total operating expenses
Income (loss) from continuing operations:
Expedited Freight
Intermodal
Other operations
Income from continuing operations
Other expense:
Interest expense, net
Total other expense
Income from continuing operations before income taxes
Income tax expense
Net income from continuing operations
Income from discontinued operation, net of tax
Net income and comprehensive income
1,260,121
419,718
(205)
1,679,634
730,412
302,759
85,290
42,552
47,478
26,956
196,596
1,432,043
192,583
56,874
(1,866)
247,591
(5,138)
(5,138)
242,453
63,039
179,414
13,777
193,191
$
$
(163,163)
(145,675)
(61)
(308,899)
(144,217)
(15,193)
2,123
14,853
2,655
(4,952)
(4,787)
(149,518)
(76,543)
(31,547)
(51,291)
(159,381)
(26,433)
(26,433)
(185,814)
(49,203)
(136,611)
110,771
(25,840)
(12.9)%
(34.7)
(29.8)
(18.4)
(19.7)
(5.0)
2.5
34.9
5.6
(18.4)
(2.4)
(10.4)
(39.7)
(55.5)
(2,748.7)
(64.4)
(514.5)
514.5
(76.6)
(78.1)
(76.1)
804.0
(13.4)%
$
$
$
$
1,096,958
274,043
(266)
1,370,735
586,195
287,566
87,413
57,405
50,133
22,004
191,809
1,282,525
116,040
25,327
(53,157)
88,210
(31,571)
(31,571)
56,639
13,836
42,803
124,548
167,351
50
Operating Revenues
Operating revenues decreased $308,899, or 18.4% to $1,370,735 for the year ended December 31, 2023 compared to $1,679,634 for the same period in 2022. The
revenue decrease was primarily driven by lower revenue from our Expedited Freight segment of $163,163 due to decreased Network and Truckload revenue, and from our
Intermodal segment of $145,675. The results for our two reportable segments are discussed in detail in the following sections.
Operating Expenses
Operating expenses decreased $149,518, or 10.4%, to $1,282,525 for the year ended December 31, 2023 compared to $1,432,043 for the same period in 2022. The
decrease was primarily driven by a decrease in purchased transportation of $144,217, and a decrease in salaries, wages and employee benefits of $15,193 in both our Expedited
Freight and Intermodal segments, partially offset by due diligence, transaction and integration costs related to the acquisition of Omni. Purchased transportation expense
includes our Leased Capacity Providers, third-party motor carriers and capacity secured by transportation intermediaries, while Company-employed drivers are included in
salaries, wages and employee benefits. Purchased transportation expense primarily decreased due to fewer Network miles, Intermodal drayage shipments and Truckload
brokerage loads in 2023 as compared to the same period in 2022. In addition, we utilized fewer third-party motor carriers in 2023 as compared to the same period in 2022.
Salaries, wages and employee benefits decreased primarily due to a decrease in the reserve for incentive compensation, partially offset by an increase in the reserve for group
health insurance claims, incremental Company drivers hired and an increase in salaries and wages compared to the same period in 2022.
Income from Continuing Operations and Segment Operations
Income from continuing operations decreased $159,381, or 64.4%, to $88,210 for the year ended December 31, 2023, compared to $247,591 for the same period in
2022. The decrease was primarily driven by a decrease in income from continuing operations in our Expedited Freight segment, Intermodal segment, and Other Operations of
$76,543, $31,547 and $51,291.
Interest Expense, net
Interest expense, net was $31,571 for the year ended December 31, 2023 compared to $5,138 for the same period in 2022. The increase in interest expense was due to
the interest accrued on both the Senior Secured Notes and Senior Secured Term Loan Facility while held in escrow. Both debt instruments were entered into in order to finance a
portion of the cash consideration payable for the Omni Acquisition and the costs and expenses incurred in connection with the transaction. A partial offset of the accrued interest
was the interest income earned on the reinvestment of the proceeds from the Senior Secured Notes and Senior Term Loan Facility into a short-term instrument while held in
escrow. In addition to the interest accrued on the Senior Secured Notes and Senior Secured Term Loan Facility, the variable interest rate on our outstanding borrowings under
our existing credit facility was higher in 2023 than in 2022. The weighted-average interest rate on the borrowings under our existing credit facility was 6.34% and 2.77% for the
year ended December 31, 2023 and 2022, respectively.
Income Taxes on a Continuing Basis
The effective tax rate on a continuing basis for the year ended December 31, 2023 was 24.4%, compared to a rate of 26.0% for the same period in 2022. The lower
effective tax rate for the year ended December 31, 2023 was primarily due to a decrease in the non-deductible compensation in 2023 compared to the same period in 2022 and a
provision to return benefit adjustment recorded in 2023 compared to a provision to return expense adjustment recorded in 2022.
Income from Discontinued Operation, net of tax
Income from discontinued operation, net of tax increased $110,771, or 804.0%, to $124,548 for the year ended December 31, 2023 compared to $13,777 for the same
period in 2022. The increase was primarily driven by the sale of our Final Mile business in December 2023 that resulted in a gain on sale of $155,829.
Net Income
As a result of the foregoing factors, net income decreased $25,840, or 13.4%, to $167,351 for the year ended December 31, 2023 compared to $193,191 for the same
period in 2022.
51
Expedited Freight - Year Ended December 31, 2023 compared to Year Ended December 31, 2022
The following table sets forth our financial data of the Expedited Freight segment for the years ended December 31, 2023 and 2022 (unaudited and in thousands):
Operating revenue:
1
Network
Truckload
Other
Total operating revenue
Operating expenses:
Purchased transportation
Salaries, wages and employee benefits
Operating leases
Depreciation and amortization
Insurance and claims
Fuel expense
Other operating expenses
Total operating expenses
Income from operations
December 31,
2023
Percent of
Revenue
Year Ended
December 31, 2022
Percent of
Revenue
Change
Percent
Change
$
$
845,949
159,513
91,496
1,096,958
511,525
226,528
61,728
37,414
38,294
10,884
94,545
980,918
116,040
77.1 % $
14.6
8.3
100.0
46.6
20.7
5.6
3.4
3.5
1.0
8.6
89.4
10.6 % $
947,817
221,979
90,325
1,260,121
624,994
233,876
53,339
27,058
33,924
10,962
83,385
1,067,538
192,583
75.2 % $
17.6
7.2
100.0
(101,868)
(62,466)
1,171
(163,163)
49.6
18.6
4.2
2.1
2.7
0.9
6.6
84.7
15.3 % $
(113,469)
(7,348)
8,389
10,356
4,370
(78)
11,160
(86,620)
(76,543)
(10.7)%
(28.1)
1.3
(12.9)
(18.2)
(3.1)
15.7
38.3
12.9
(0.7)
13.4
(8.1)
(39.7)%
1
Network revenue is comprised of all revenue, including linehaul, pickup and/or delivery, and fuel surcharge revenue, excluding accessorial and Truckload revenue.
52
Expedited Freight Operating Statistics
Year Ended
December 31, 2023 December 31, 2022
255
254
Percent Change
(0.4) %
2,678,334
10,545
2,793,756
10,956
3,340
13.1
802
31.80
24.48
255.06
196.32
$
$
$
$
3,654
14.3
764
34.23
25.98
261.68
198.62
$
$
$
$
(4.1)
(3.8)
(8.6)
(8.4)
5.0
(7.1)
(5.8)
(2.5)
(1.2)
Business days
1,2
Tonnage
Total pounds
Pounds per day
1,2
Shipments
Total shipments
Shipments per day
Weight per shipment
3
Revenue per hundredweight
3
Revenue per hundredweight, ex fuel
3
Revenue per shipment
3
Revenue per shipment, ex fuel
1
In thousands
2
Excludes accessorial and Truckload products
3
Includes intercompany revenue between the Network and Truckload revenue streams
53
Operating Revenues
Expedited Freight operating revenue decreased $163,163, or 12.9%, to $1,096,958 for the year ended December 31, 2023 from $1,260,121 for the same period in 2022.
The decrease was driven by decreased Network and Truckload revenue. Network revenue decreased due to a 3.8% decrease in pounds per day and a 5.8% decrease in revenue
per hundredweight excluding fuel as compared to the same period in 2022. The decrease in tonnage reflects an increase in weight per shipment of 5.0% on 8.4% fewer
shipments per day. The decrease in tonnage is due to softer market demand for our services driven by the weak freight environment while the increase in weight per shipment
was the result of more dense freight in our network driven by a change in the mix of services provided to customers. Fuel surcharge revenue decreased $34,299 or 14.9% as a
result of the decline in the average price of fuel and a decrease in tonnage in our Network. Truckload revenue decreased $62,466 primarily due to the challenged market
conditions that led to decreased customer demand for our services. Other revenue, which includes accessorial revenue, warehousing and terminal handling, increased $1,171
due to targeted initiatives, partially offset by the fewer number of shipments.
Purchased Transportation
Expedited Freight purchased transportation expense decreased by $113,469, or 18.2%, to $511,525 for the year ended December 31, 2023 from $624,994 for the same
period in 2022. Expedited Freight purchased transportation was 46.6% of Expedited Freight operating revenue for the year ended December 31, 2023 compared to 49.6% for the
same period in 2022. Expedited Freight purchased transportation includes Leased Capacity Providers, third-party motor carriers and transportation intermediaries, while
expenses for Company-employed drivers are included in salaries, wages and employee benefits. The decrease in purchased transportation expense was primarily due to lower
volumes in Network and Truckload and the change in the mix of freight capacity purchased from Leased Capacity Providers, third-party motor carriers, and transportation
intermediaries for Network and Truckload services. For the year ended December 31, 2023, 64.8%, 30.4% and 4.8% of our freight capacity was purchased from Leased
Capacity Providers, third-party motor carriers and transportation intermediaries and Company-employed drivers, respectively for Network and Truckload. This compares to
67.2%, 29.4% and 3.4%, respectively, for the same period in 2022.
Salaries, Wages, and Employee Benefits
Expedited Freight salaries, wages and employee benefits decreased by $7,348, or 3.1%, to $226,528 for the year ended December 31, 2023 from $233,876 for the same
period in 2022. Salaries, wages and employee benefits were 20.7% of Expedited Freight operating revenue for the year ended December 31, 2023 compared to 18.6% for the
same period in 2022. The decrease in salaries, wages and employee benefits expense was primarily due to a decrease in the reserve for incentive compensation, partially offset
by incremental Company drivers hired in the first half of 2023 and an increase in salaries and wages compared to the same period in 2022.
Operating Leases
Expedited Freight operating leases increased $8,389, or 15.7%, to $61,728 for the year ended December 31, 2023 from $53,339 for the same period in 2022. Operating
leases were 5.6% of Expedited Freight operating revenue for the year ended December 31, 2023 compared to 4.2% for the same period in 2022. The increase in operating lease
expense was primarily due to higher facility expense as a result of new locations added in the first half of 2023 and higher facility operating costs for the year ended December
31, 2023 compared to the same period in 2022.
Depreciation and Amortization
Expedited Freight depreciation and amortization increased $10,356, or 38.3%, to $37,414 for the year ended December 31, 2023 from $27,058 for the same period in
2022. Depreciation and amortization expense as a percentage of Expedited Freight operating revenue was 3.4% for the year ended December 31, 2023 compared to 2.1% for the
same period in 2022. The increase in depreciation and amortization expense was primarily due to an increase in equipment depreciation for the year ended December 31, 2023
compared to the same period in 2022 as a result of purchasing and placing in service new equipment in 2023.
54
Insurance and Claims
Expedited Freight insurance and claims expense increased $4,370, or 12.9%, to $38,294 for the year ended December 31, 2023 from $33,924 for the same period in
2022. Insurance and claims as a percentage of Expedited Freight operating revenue was 3.5% for the year ended December 31, 2023 compared to 2.7% for the same period in
2022. The increase in insurance and claims expense was primarily due to an increase in equipment repair claims and insurance premiums, partially offset by a decrease in cargo
claims for the year ended December 31, 2023 as compared to the same period in 2022. See additional discussion over the consolidated change in self-insurance reserves in the
“Other Operations” section below.
Fuel Expense
Expedited Freight fuel expense decreased $78, or 0.7%, to $10,884 for the year ended December 31, 2023 from $10,962 for the same period in 2022. Fuel expense was
1.0% of Expedited Freight operating revenue for the year ended December 31, 2023 compared to 0.9% for the same period in 2022. Expedited Freight fuel expense decreased
primarily due to the decline in the average price of fuel, partially offset by additional miles driven by Company-employed drivers during the year ended December 31, 2023.
Other Operating Expenses
Expedited Freight other operating expenses increased $11,160, or 13.4%, to $94,545 for the year ended December 31, 2023 from $83,385 for the same period in
2022. Other operating expenses were 8.6% of Expedited Freight operating revenue for the year ended December 31, 2023 compared to 6.6% for the same period in 2022. Other
operating expenses include contract labor, equipment maintenance, facility expenses, legal and professional fees and other over-the-road costs. The increase in other operating
expenses was primarily due to an increase in contract labor, professional fees, software license and subscription fees, tolls and indirect taxes, partially offset by a decrease in
maintenance and repair expense for the year ended December 31, 2023 compared to the same period in 2022.
Income from Operations
Expedited Freight income from operations decreased by $76,543, or 39.7%, to $116,040 for the year ended December 31, 2023 compared to $192,583 for the same
period in 2022. Expedited Freight income from operations was 10.6% of operating revenue for the year ended December 31, 2023, compared to 15.3% for the same period in
2022. The decrease in income from operations as a percentage of operating revenue was driven by decreased tonnage and revenue per hundredweight excluding fuel combined
with lower fuel surcharge revenue, partially offset by the mix of freight capacity purchased from Leased Capacity Providers, third-party motor carriers and transportation
intermediaries and Company-employed drivers for Network and Truckload for the year ended December 31, 2023 compared to the same period in 2022.
55
Intermodal - Year Ended December 31, 2023 compared to Year Ended December 31, 2022
The following table sets forth our financial data of the Intermodal segment for the years ended December 31, 2023 and 2022 (unaudited and in thousands):
Operating revenue
$
274,043
100.0 % $
419,718
100.0 % $
(145,675)
(34.7)%
December 31,
2023
Percent of
Revenue
December 31,
2022
Percent of
Revenue
Change
Percent
Change
Year Ended
Operating expenses:
Purchased transportation
Salaries, wages and employee benefits
Operating leases
Depreciation and amortization
Insurance and claims
Fuel expense
Other operating expenses
Total operating expenses
Income from operations
$
74,941
66,925
25,685
19,991
10,320
11,121
39,733
248,716
25,327
27.3
24.4
9.4
7.3
3.8
4.1
14.5
90.8
9.2 % $
105,656
73,406
31,950
15,393
9,087
15,993
111,359
362,844
56,874
25.2
17.5
7.6
3.7
2.2
3.8
26.5
86.4
13.6 % $
(30,715)
(6,481)
(6,265)
4,598
1,233
(4,872)
(71,626)
(114,128)
(31,547)
(29.1)
(8.8)
(19.6)
29.9
13.6
(30.5)
(64.3)
(31.5)
(55.5)%
Drayage shipments
Drayage revenue per shipment
Intermodal Operating Statistics
December 31, 2023
274,997
913
$
Year Ended
December 31, 2022
347,066
1,118
$
Percent Change
(20.8)%
(18.3)%
56
Operating Revenues
Intermodal operating revenue decreased $145,675, or 34.7%, to $274,043 for the year ended December 31, 2023, from $419,718 for the same period in 2022. The
decrease in operating revenues was primarily attributable to a 20.8% decrease in drayage shipments and an 18.3% decrease in drayage revenue per shipment over the same
period in 2022. The decrease in drayage shipments and corresponding lower accessorial revenue to support customer needs was primarily due to the challenged market
conditions that led to decreased customer demand for our services for the year ended December 31, 2023 compared to the same period in 2022. In addition, fuel surcharge
revenue decreased $17,876 or 33.4% over the same period, as a result of the decline in the average price of fuel.
Purchased Transportation
Intermodal purchased transportation decreased $30,715, or 29.1%, to $74,941 for the year ended December 31, 2023 from $105,656 for the same period in
2022. Purchased transportation was 27.3% of Intermodal operating revenues for the year ended December 31, 2023 compared to 25.2% for the same period in 2022. Intermodal
purchased transportation includes Leased Capacity Providers, third-party motor carriers, while expenses for Company-employed drivers are included in salaries, wages and
employee benefits. The decrease in purchased transportation expense was primarily due to fewer drayage shipments and the change in the mix of freight capacity purchased
from Leased Capacity Providers and third-party motor carriers compared to the same period in 2022.
Salaries, Wages, and Employee Benefits
Intermodal salaries, wages and employee benefits decreased $6,481, or 8.8%, to $66,925 for the year ended December 31, 2023 from $73,406 for the same period in
2022. Salaries, wages and employee benefits were 24.4% of Intermodal operating revenue for the year ended December 31, 2023 compared to 17.5% for the same period in
2022. The decrease in salaries, wages and employee benefits expense was primarily due to a decrease in the reserve for incentive compensation and fewer Company-employed
drivers in response to lower volumes, partially offset by higher salaries and wages as compared to the same period in 2022.
Operating Leases
Intermodal operating leases decreased $6,265, or 19.6%, to $25,685 for the year ended December 31, 2023, from $31,950 for the same period in 2022. Operating
leases were 9.4% of Intermodal operating revenue for the year ended December 31, 2023 compared to 7.6% in the same period in 2022. The decrease in operating leases expense
was primarily due to lower equipment expense incurred to support the decreased accessorial revenues for the year ended December 31, 2023 compared to the same period in
2022.
Depreciation and Amortization
Intermodal depreciation and amortization increased $4,598, or 29.9%, to $19,991 for the year ended December 31, 2023, from $15,393 for the same period in 2022.
Depreciation and amortization expense as a percentage of Intermodal operating revenue was 7.3% for the year ended December 31, 2023 compared to 3.7% for the same period
in 2022. The increase in depreciation and amortization expense was primarily due to the additional depreciation and amortization expense as a result of the equipment and
intangible assets acquired in connection with the acquisitions completed in 2022.
Insurance and Claims
Intermodal insurance and claims expense increased $1,233, or 13.6%, to $10,320 for the year ended December 31, 2023 from $9,087 for the same period in
2022. Insurance and claims were 3.8% of Intermodal operating revenue for the year ended December 31, 2023 compared to 2.2% for the same period in 2022. The increase in
insurance and claims expense was primarily due to an increase in vehicle liability and equipment repair claims for the year ended December 31, 2023 compared to the same
period in 2022. See additional discussion over the consolidated change in self-insurance reserves in the “Other Operations” section below.
57
Fuel Expense
Intermodal fuel expense decreased $4,872, or 30.5%, to $11,121 for the year ended December 31, 2023 from $15,993 for the same period in 2022. Fuel expense was
4.1% of Intermodal operating revenue for the year ended December 31, 2023 compared to 3.8% for the same period in 2022. Intermodal fuel expense decreased due to fewer
miles driven by Company-employed drivers and the decrease in the average price of fuel during the year ended December 31, 2023 compared to the same period in 2022.
58
Other Operating Expenses
Intermodal other operating expenses decreased $71,626, or 64.3%, to $39,733 for the year ended December 31, 2023 from $111,359 for the same period in 2022. Other
operating expenses as a percentage of Intermodal revenue for the year ended December 31, 2023 was 14.5%, compared to 26.5% for the same period in 2022. Other operating
expenses include contract labor, equipment maintenance, facility expenses, legal and professional fees and accessorial storage costs. The decrease in other operating expenses
was driven by lower accessorial storage costs incurred as a result of decreased accessorial revenues, maintenance and repair expense, tolls and professional fees, partially offset
by higher contract labor, software license and subscription fees and warehouse supplies for the year ended December 31, 2023 compared to the same period in 2022.
Income from Operations
Intermodal income from operations decreased by $31,547, or 55.5%, to $25,327 for the year ended December 31, 2023 compared to $56,874 for the same period in
2022. Income from operations as a percentage of Intermodal operating revenue was 9.2% for the year ended December 31, 2023 compared to 13.6% in the same period in
2022. The decrease in income from operations as a percentage of operating revenue was driven by lower drayage revenue per shipment on fewer drayage shipments, partially
offset by the change in mix of freight capacity purchased from Leased Capacity Providers, third-party motor carriers and Company-employed drivers.
59
Other operations - Year Ended December 31, 2023 compared to Year Ended December 31, 2022
Other operating activity included a $53,157 operating loss for the year ended December 31, 2023 compared to a $1,866 operating loss for the same period in 2022. The
change in the operating loss was primarily driven by $57,490 of professional fees incurred for due diligence, transaction and integration costs incurred in connection with the
acquisition of Omni, an increase in the reserves for group health insurance claims, an increase in the reserves for workers compensation claims and an increase in the reserves
for vehicle liability claims, partially offset by the reversal of an accrual for an incentive program established for certain employees in 2021. The increase in the self-insurance
reserve for vehicle liability claims was due to the unfavorable loss development factor of historical claims.
Critical Accounting Policies and Estimates
Our consolidated financial statements have been prepared in accordance with United States generally accepted accounting principles (“GAAP”). The preparation of
financial statements in accordance with GAAP requires management to make judgments, estimates and assumptions that affect the reported amounts of assets and liabilities, the
disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Our
estimates and assumptions are based on historical experience and changes in the business environment. However, actual results may differ from estimates under different
conditions, sometimes materially. The significant accounting policies followed in the preparation of the financial statements are detailed in Note 1 of our Consolidated Financial
Statements included in this Form 10-K.
Critical accounting policies and estimates are defined as those that are both most important to the portrayal of our financial condition and results and require
management’s most subjective judgments. We believe that our application of the policies discussed below involves significant levels of judgment, estimates and complexity.
Due to the levels of judgment, complexity and period of time over which many of these items are resolved, actual results could differ from those estimated at the time of
preparation of the financial statements. Adjustments to these estimates would impact our financial position and future results of operations.
Self-Insurance Loss Reserves
We provide for the estimated costs of self-insurance loss reserves, which includes vehicle liability, and workers’ compensation claims; for both reported and for claims
incurred but not reported. The amount of self-insurance loss reserves and loss adjustment expenses is determined based on an estimation process that requires us to make
significant judgments and use information obtained from both our specific and industry data, as well as general economic information. We estimate our self-insurance loss
exposure by evaluating the merits and circumstances surrounding individual known claims and through actuarial analysis to determine an estimate of probable losses on claims
incurred but not reported. If the events underlying the claims have occurred as of the balance sheet date, then losses are recognized immediately. Historically, we have
experienced both favorable and unfavorable development of claim estimates.
The estimation process for self-insurance loss exposure requires management to make significant judgments and continuously monitor and evaluate the life cycle of
claims. Using data obtained from this monitoring and our assumptions about the emerging trends, management develops an estimate of ultimate claims based on its historical
experience and other available market information. The most significant assumptions used in the estimation process include determining the trend in loss costs, the expected
consistency in the frequency and severity of claims incurred but not yet reported, changes in the timing of the reporting of losses from the loss date to the notification date, and
expected costs to settle unpaid claims. We utilize quarterly actuarial analyses to evaluate open claims and estimate the ongoing development exposure. The actual cost to settle
our self-funded claim liabilities can differ from our reserve estimates because of a number of uncertainties, including the inherent difficulty in estimating the severity of a claim
and the potential amount to defend and settle a claim.
As of December 31, 2023 and 2022, we recorded self-insurance loss reserves of $66,374 and $67,860, respectively, inclusive of reserves in excess of the self-insured
retention limit that are expected to be reimbursed from insurance carriers. Additionally, we recognized a receivable for insurance proceeds and a corresponding claims payable
for vehicle liability and workers’ compensation claims in excess of the self-insured retention limit in the amount of $26,712 and $29,087 as of December 31, 2023 and 2022,
respectively.
60
Business Combinations and Goodwill
Acquisitions are accounted for using the purchase method. Upon the acquisition of a business, the fair value of the assets acquired and liabilities assumed are estimated.
This requires judgments regarding the identification of acquired assets and liabilities assumed, some of which may not have been previously recorded by the acquired business,
as well as judgments regarding the valuation of all identified acquired assets and assumed liabilities. The assets acquired and liabilities assumed are determined by
understanding the operations, interviewing management and reviewing the financial and contractual information of the acquired business. Consideration is typically paid in the
form of cash paid at closing while contingent consideration is paid upon the satisfaction of a future obligation. If contingent consideration is included in the purchase price, then
the consideration is valued as of the acquisition date.
Once the acquired assets and assumed liabilities are identified, the fair value of the assets and liabilities are estimated using a variety of approaches that require significant
judgments. For example, intangible assets are typically valued using a discounted cash flow (“DCF”) analysis, which requires estimates of the future cash flows attributable to
the intangible asset. A DCF analysis also requires judgments regarding the selection of discount rates to reflect the risks inherent in the projected cash flows, the determination
of terminal growth rates, and the useful life and pattern of use of the underlying intangible asset. The valuation of acquired property and equipment requires judgments about
current market values, replacement costs, the physical and functional obsolescence of the assets and their remaining useful lives. A failure to appropriately assign a fair value to
acquired assets and assumed liabilities could significantly impact the amount and timing of future depreciation and amortization expense, as well as significantly overstate or
understate assets or liabilities.
Goodwill is recorded at cost based on the excess of purchase price over the estimated fair value of net assets acquired. Goodwill is not amortized but rather evaluated annually
or more frequently if circumstances indicate possible impairment, as of June 30 for impairment using a qualitative assessment or quantitative one-step assessment. Examples of
such events or circumstances that could indicate a possible impairment may include a significant change in business climate or a loss of significant customers. Intangible assets
are amortized over their estimated useful lives.
Year Ended December 31, 2022 compared to Year Ended December 31, 2021
For discussion of our Results of Operations for the fiscal year ended December 31, 2022 compared to the fiscal year ended December 31, 2021, refer to Part I,
Item 7 of our annual report on form 10-K filed with SEC on March 1, 2023.
61
Liquidity and Capital Resources
For discussion of our Liquidity and Capital Resources for the fiscal year ended December 31, 2022 compared to the fiscal year ended December 31, 2021, refer to Part
I, Item 7 of our annual report on form 10-K filed with SEC on March 1, 2023.
We have historically financed our working capital needs, including capital expenditures, with available cash, cash flows from operations and borrowings under our
Credit Facility (as defined below). We believe that borrowings under our Revolving Credit Facility (defined below) and our New Term Loans (defined below), together with
available cash and internally generated funds, will be sufficient to support our working capital, capital expenditures and debt service requirements for the foreseeable future. As
previously disclosed and more fully described below and in Note 3, Acquisitions, to the Consolidated Financial Statements, we incurred significant indebtedness in connection
with the Omni Acquisition. This substantial level of debt could have important consequences to our business, including, but not limited to the factors as more fully discussed in
Item 1A, “Risk Factors” - “Risks Relating to our Indebtedness”.
Credit Facility
To further support liquidity and cash reserves, in December 2021, we entered into a third amendment to our credit facility (the “Credit Facility”), which increased the
amount available for borrowing to $450,000, consisting of a $300,000 revolving line of credit and a term loan of $150,000. The amendment established annual mandatory
repayment of the principal amount of the term loan of: 1.0% per annum in 2022 and 2023; 2.5% per annum in 2024 and 2025; 5.0% per annum in 2026; with the remaining
unpaid principal being due on July 20, 2026. As of December 31, 2023, we repaid all long-term debt associated with the Credit Facility. The Credit Facility was extinguished in
tandem with the closing of the transactions contemplated by the Omni Acquisition. Refer to Note 4, Indebtedness, to our Consolidated Financial Statements for additional
information regarding our Credit Facility.
Senior Secured Notes
In order to finance a portion of the cash consideration payable for the Omni Acquisition and the costs and expenses incurred in connection therewith, GN Bondco,
LLC, a Delaware limited liability company and wholly owned subsidiary of Omni (the “Escrow Issuer”) launched a private offering of $725,000 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 Notes bear interest at a rate of 9.5% per annum, payable semiannually in cash in arrears on April 15 and October
15 of each year, commencing April 15, 2024. The Notes were issued at 98.0% of the face amount and will mature on October 15, 2031. The Notes were issued pursuant to an
indenture, dated as of October 2, 2023, between the Escrow Issuer and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent. As of December
31, 2023, GN Bondco, LLC is considered a Variable Interest Entity and is consolidated within our Consolidated Financial Statements.
The Notes are guaranteed on a senior secured basis in an aggregate principal amount in excess of $100,000. Prior to October 15, 2026, Opco may redeem some or all of
the Notes at any time and from time to time at a redemption price equal to 100.000% of the principal amount thereof plus the applicable “make-whole” premium, plus accrued
and unpaid interest, if any, to, but excluding, the redemption date. On or after October 15, 2026, Opco may redeem some or all of the Notes at the following prices (expressed
as a percentage of principal), plus in each case accrued and unpaid interest, if any, to, but excluding, the redemption date: (a) in the case of a redemption occurring during the
12-month period commencing October 15, 2026, at a redemption price of 104.750%; (b) in the case of a redemption occurring during the 12-month period commencing on
October 15, 2027, at a redemption price of 102.375%; and (c) in the case of a redemption occurring on or after October 15, 2028, at a redemption price of 100.000%. In
addition, at any time prior to October 15, 2026, Opco may redeem up to 40.000% of the original aggregate principal amount of the Notes in an amount not to exceed the amount
of net cash proceeds from one or more equity offerings at a redemption price equal to 109.5 % of the principal amount thereof, plus accrued and unpaid interest, if any, to, but
excluding, the redemption date. Upon the occurrence of a “change of control”, Opco will be required to offer to repurchase all of the outstanding principal amount of the Notes
at a purchase price of 101.000% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase.
62
Senior Secured Term Loan Facility
In order to finance a portion of the cash consideration payable for the Omni Acquisition and the costs and expenses incurred in connection therewith, GN Loanco,
LLC, a Delaware limited liability company and wholly owned subsidiary of Omni (the “Escrow Loan Borrower”), entered into a credit agreement (the “Credit Agreement”) with
Citibank, N.A., as administrative agent and collateral agent and as initial term loan lender. Pursuant to the Credit Agreement, the Escrow Loan Borrower obtained senior
secured term B loans in an aggregate principal amount of $1,125,000 (the “New Term Loans”) and the ability to draw down up to $400,000 under a line of credit (the
“Revolving Credit Facility”). The New Term Loans bear interest based, at Opco’s election, on (a) SOFR plus an applicable margin or (b) the base rate plus an applicable
margin. The base rate is equal the highest of the following: (i) the prime rate; (ii) 0.50% above the overnight federal funds rate; and (iii) the one-month SOFR plus 1.00%. The
applicable margin for SOFR loans is 4.50% and the applicable margin for base rate loans is 3.50%. The New Term Loans are subject to customary amortization of 1.00% per
year. The New Term Loans were issued at 96.0% of the face amount and will mature on December 19, 2030. As of December 31, 2023 GN Loanco, LLC is considered a
Variable Interest Entity and is consolidated within our Consolidated Financial Statements.
No borrowings under the Revolving Credit Facility were made in connection with the Omni Acquisition. The Revolving Credit Facility will mature on January 25,
2029. Loans made under the Revolving Credit Facility bear interest based, at Opco’s election, on (a) SOFR plus an applicable margin or (b) the base rate plus an applicable
margin. Until delivery of a compliance certificate in respect of the fiscal quarter ending June 30, 2024, the applicable margin for SOFR loans is 4.25% and the applicable
margin for base rate loans is 3.25%. Thereafter, the applicable margin can range from 3.75% to 4.25% for SOFR loans and from 2.75% to 3.25% for base rate loans, in each
case depending on Opco’s first lien net leverage ratio, as set forth in the Credit Agreement. Upon the closing of the Omni Acquisition, Opco assumed the Escrow Loan
Borrower’s obligations under the Credit Agreement, which were further secured by certain guarantors. Opco’s obligations under the Credit Agreement are guaranteed on a
senior secured basis by us and each of Opco’s existing and future domestic subsidiaries (subject to customary exceptions).
On February 12, 2024, Opco and the parties to the Credit Agreement entered into Amendment No. 2 (“Amendment No. 2”) to the Credit Agreement, which (a)
modifies the financial performance covenant in the Credit Agreement by temporarily increasing the 4.50:1.00 maximum consolidated first lien net leverage ratio permitted by
the covenant to (i) 6.00:1.00 (for the second and third quarters of 2024), (ii) 5.50:1.00 (for the fourth quarter of 2024), (iii) 5.25:1.00 (for the first quarter of 2025), (iv) 5.00:1.00
(for the second quarter of 2025) and (v) 4.75:1.00 (for the third quarter of 2025) and (b) reduces the revolving credit commitments available under the Credit Agreement from
an aggregate principal amount of $400,000 to an aggregate principal amount of $340,000. Amendment No. 2 also amends certain other terms of the Credit Agreement in
connection with the foregoing.
Prior to the effectiveness of Amendment No. 2 on February 12, 2024, Opco repaid $80,000 aggregate principal amount of the New Term Loans outstanding under the
Credit Agreement, together with all accrued and unpaid interest thereon.
Both the Notes and Revolving Credit Facility contain covenants that, among other things, restrict the ability of us, without the approval of the required lenders, to
engage in certain mergers, consolidations, asset sales, dividends and stock repurchases, investments, and other transactions or to incur liens or indebtedness in excess of agreed
thresholds, as set forth in the credit agreement. The Revolving Credit Facility’s terms also include a financial covenant which requires us to maintain a specific leverage ratio.
As of the date of this report, we were in compliance with all aforementioned covenants.
Tax Receivable Agreement
In connection with the Omni Acquisition, we, Opco, Omni Holders and certain other parties entered into a tax receivable agreement (the “Tax Receivable
Agreement”), which sets forth the agreement among the parties regarding the sharing of certain tax benefits realized by us as a result of the Omni Acquisition. Pursuant to the
Tax Receivable Agreement, we are generally obligated to pay certain Omni Holders 83.5% of (a) the total tax benefit that we realize as a result of increases in tax basis in
Opco’s assets resulting from certain actual or deemed distributions and the future exchange of units of Opco for shares of securities of us (or cash) pursuant to Opco’s operating
agreement that became effective as of the Closing, (b) certain pre-existing tax attributes of certain Omni Holders that are corporate entities for tax purposes, (c) the tax benefits
that we realize from certain tax allocations that correspond to items of income or gain required to be recognized by certain Omni Holders, and (d) other tax benefits attributable
to payments under the Tax Receivable Agreement. Payment obligations under the Tax Receivable Agreement rank pari passu with all unsecured obligations but senior to any
future tax receivable or similar agreement entered into by us.
63
The term of the Tax Receivable Agreement will continue until all such tax benefits have been utilized or expired unless we elect to terminate the Tax Receivable
Agreement early (or it is terminated early due to a change of control or insolvency event with respect to us or a material breach by us of a material obligation under the Tax
Receivable Agreement). Upon such an early termination, we will be required to make a payment equal to the present value of the anticipated future payments to be made by it
under the Tax Receivable Agreement (based upon certain assumptions and deemed events set forth in the Tax Receivable Agreement). In the event of a change of control, under
certain circumstances, we may elect to pay the early termination payment over a period of 15 years, with the payments increased to reflect the time value of money.
Cash Flows
Year Ended December 31, 2023 Cash Flows compared to December 31, 2022 Cash Flows
Continuing Operations
Net cash provided by operating activities of continuing operations was $199,212 for the year ended December 31, 2023 compared to $250,161 for the year ended
December 31, 2022. The decrease in net cash provided by operating activities of continuing operations was primarily due to the decrease in net income from continuing
operations after consideration of non-cash items, partially offset by the change in accounts receivable and other current and noncurrent assets. The accounts receivable balance
changed due to the decrease in operating revenue in 2023. Other current and noncurrent assets balance changed due to the increase in income taxes payable, partially offset by
an increase in interest income receivable and prepaid professional fees in 2023.
Net cash used in investing activities of continuing operations was $83,687 for the year ended December 31, 2023 compared to $102,987 during the year ended
December 31, 2022. Capital expenditures for the year ended December 31, 2023 were $30,725, which primarily related to the purchase of technology and operating equipment.
Capital expenditures for the year ended December 31, 2022 were $39,254, which primarily related to the investment in the expansion of our national hub in Columbus, Ohio
and the purchase of technology and operating equipment. Investing activities of continuing operations for the year ended December 31, 2023 included the acquisition of Land
Air for a purchase price of $56,567, while investing activities for the year ended December 31, 2022 included the acquisition of Edgmon for a purchase price of $40,433 and
Chickasaw Container Services, Inc. for a purchase price of $25,733.
Net cash provided by financing activities of continuing operations was $1,790,726 for the year ended December 31, 2023 compared to net cash used in financing
activities of continuing operations of $138,668 for the year ended December 31, 2022. The change in the net cash provided by financing activities of continuing operations was
primarily due to the proceeds from long-term debt held in escrow and the increased contributions from a subsidiary held for sale, partially offset by the net repayment of the
borrowings outstanding under our Credit Facility and increased repurchases and retirement of common stock.
Discontinued Operation
Net cash used in discontinued operating activities was $17,824 for the year ended December 31, 2023 compared to the cash provided by discontinued operating
activities of $8,929 for the year ended December 31, 2022. The change in net cash used in operating activities of discontinued operation was primarily related to the decrease in
net income of discontinued operations after consideration of non-cash items. The sale of Final Mile was completed on December 20, 2023.
Net cash provided by discontinued investing activities was $258,525 for the year ended December 31, 2023 compared to net cash used in discontinued investing
activities was $1,475 during the year ended December 31, 2022. The change in net cash provided by discontinued investing activities was due to the proceeds received from the
sale of the Final Mile business in 2023. The sale of Final Mile was completed on December 20, 2023.
Net cash used in financing activities of discontinued operation was $240,701 for the year ended December 31, 2023 compared to $7,454 for the year ended December
31, 2022. The change in the net cash used in financing activities of discontinued operations was due to increased contributions to the parent.
64
Share Repurchase Program
During the year ended December 31, 2023 and 2022, we repurchased 883 and 600 shares of our common stock, respectively, for approximately $93,811 and $62,771,
respectively, through open market transactions. All shares received were retired upon receipt, and the excess of the purchase price over par value per share was recorded to
“Retained Earnings” in our Consolidated Balance Sheets.
65
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Our exposure to market risk relates principally to changes in interest rates and fuel prices. Our interest expense is, in part, sensitive to the general level of interest rates.
No borrowings were outstanding under our Credit Facility as of December 31, 2023. A hypothetical increase in our Credit Facility borrowing rate of 150 basis points would
have increased our annual interest expense by approximately $1,969 and would have decreased our annual cash flow from operations by approximately $1,969.
Our finance lease obligations were $39,381 as of December 31, 2023. These finance lease obligations bear interest at a fixed rate. Accordingly, there is no exposure to
market risk related to these obligations.
We are exposed to the effects of changes in the price and availability of fuel, as more fully discussed in Item 1A, “Risk Factors” - under the title “Volatility in fuel
prices, shortages of fuel or the ineffectiveness of our fuel surcharge program could have a material adverse effect on our results of operations and profitability.”
Item 8. Financial Statements and Supplementary Data
The response to this item is submitted as a separate section of this report.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure
None.
66
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
Our management, including our principal executive and principal financial officers, has evaluated the effectiveness of our disclosure controls and procedures as of
December 31, 2023. Our disclosure controls and procedures are designed to provide reasonable assurance that the information required to be disclosed in this annual report on
Form 10-K has been appropriately recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules and
forms, and that such information is accumulated and communicated to our management, including our principal executive and principal financial officers, to allow timely
decisions regarding required disclosure. Based on that evaluation, our principal executive and principal financial officers have concluded that our disclosure controls and
procedures are effective at the reasonable assurance level.
Management’s Report on Internal Control over Financial Reporting
Management is responsible for establishing and maintaining effective internal control over financial reporting as defined in Rules 13a-15(f) under the Exchange Act.
Our internal control over financial reporting is designed to provide reasonable assurance to management and the Board of Directors regarding the preparation and fair
presentation of financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect all misstatements. Therefore, even those systems determined to
be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
Under the supervision and with the participation of our management, including our Chief Executive Officer and Chief Financial Officer, we assessed the effectiveness
of our internal control over financial reporting as of December 31, 2023. In making this assessment, management used the framework set forth by the Committee on Sponsoring
Organizations of the Treadway Commission in Internal Control — Integrated Framework (“2013 Framework”). Based on our assessment, we have concluded, as of December
31, 2023, that our internal control over financial reporting was effective based on those criteria.
Ernst & Young LLP, the independent registered public accounting firm that audited the Company’s consolidated financial statements for the year ended December 31,
2023, has issued an attestation report on the Company’s internal control over financial reporting.
Changes in Internal Control over Financial Reporting
None.
67
To the Shareholders and the Board of Directors of Forward Air Corporation
Opinion on Internal Control over Financial Reporting
Report of Independent Registered Public Accounting Firm
We have audited Forward Air Corporation’s internal control over financial reporting as of December 31, 2023, based on criteria established in Internal Control—
Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (2013 framework) (the COSO criteria). In our opinion, Forward Air
Corporation (the Company) maintained, in all material respects, effective internal control over financial reporting as of December 31, 2023, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated balance sheets
of the Company as of December 31, 2023 and 2022, the related consolidated statements of comprehensive income, shareholders’ equity, and cash flows for each of the three
years in the period ended December 31, 2023, and the related notes and financial statement schedule listed in the Index at Item 15(a) (collectively referred to as the “financial
statements”) and our report dated March 15, 2024 expressed an unqualified opinion thereon.
Basis for Opinion
The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal
control over financial reporting included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on
the Company’s internal control over financial reporting based on our audit. We are a public accounting firm registered with the PCAOB and are required to be independent with
respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance
about whether effective internal control over financial reporting was maintained in all material respects.
Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the
design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We
believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting
includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the
assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally
accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the
company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have
a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies
or procedures may deteriorate.
/s/ Ernst & Young LLP
Atlanta, GA
March 15, 2024
68
Item 9B. Other Information
During the quarter ended December 31, 2023, no director or officer of the Company adopted or terminated a “Rule 10b5-1 trading agreement” or “non-Rule 10b5-1
trading agreement,” as each term is defined in Item 408(a) of Regulation S-K.
Item 9C. Disclosure Regarding Foreign Jurisdictions that Prevent Inspections
Not applicable
Item 10. Directors, Executive Officers and Corporate Governance
Part III
Information required by this item is incorporated herein by reference to our proxy statement for the 2024 Annual Meeting of Shareholders (the “2024 Proxy
Statement”). The 2024 Proxy Statement will be filed with the SEC not later than 120 days subsequent to December 31, 2023.
Item 11. Executive Compensation
The information required by this item is incorporated herein by reference to the 2024 Proxy Statement.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Shareholder Matters
The information required by this item is incorporated herein by reference to the 2024 Proxy Statement.
Item 13. Certain Relationships and Related Transactions, and Director Independence
The information required by this item is incorporated herein by reference to the 2024 Proxy Statement.
Item 14. Principal Accounting Fees and Services
The information required by this item is incorporated herein by reference to the 2024 Proxy Statement.
Part IV
Item 15. Exhibits, Financial Statement Schedules
(a)(1) and (2) List of Financial Statements and Financial Statement Schedules.
The response to this portion of Item 15 is submitted as a separate section of this report.
(a)(3) List of Exhibits.
The response to this portion of Item 15 is submitted as a separate section of this report.
(b) Exhibits.
The response to this portion of Item 15 is submitted as a separate section of this report.
(c) Financial Statement Schedules.
The response to this portion of Item 15 is submitted as a separate section of this report.
69
No.
2.1
2.2
3.1
3.2
3.3
4.1
4.2
4.3
4.4
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
10.10
10.11
EXHIBIT INDEX
Exhibit
Agreement and Plan of Merger, dated as of August 10, 2023 by and among, among others, Forward Air Corporation and Omni Newco LLC (incorporated
herein by reference to the registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on August 14, 2023).
Amendment No. 1 to the Original Merger Agreement, dated January 22, 2024, by and among Forward Air Corporation and Omni Newco, LLC
(incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 24,
2024).
Restated Charter of the registrant (incorporated herein by reference to Exhibit 3 to the registrant’s Current Report on Form 8-K filed with the Securities
and Exchange Commission on May 28, 1999 (File No. 0-22490))
Amended and Restated Bylaws of the registrant (incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the Securities
and Exchange Commission on February 13, 2023).
Articles of Amendment to the Restated Charter of Forward Air Corporation (incorporated herein by reference to the registrant's Current Report on Form 8-
K filed with the Securities and Exchange Commission on January 31, 2024).
Form of Forward Air Corporation Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 to the registrant’s Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1998 filed with the Securities and Exchange Commission on November 16, 1998 (File No. 0-22490))
Description of Capital Stock
Indenture, dated as of October 2, 2023, by and among Clue Opco LLC (as successor to GN Bondco, LLC), as issuer, and U.S. Bank Trust Company,
National Association, as trustee and notes collateral agent (incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on January 31, 2024).
First Supplemental Indenture, dated as of January 25, 2024, by and among Clue Opco LLC, as issuer, Forward Air Corporation and the other guarantors
party thereto, as guarantors, and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent (incorporated herein by reference
to the registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 31, 2024).
Forward Air Corporation 2005 Employee Stock Purchase Plan (incorporated herein by reference to the registrant's Proxy Statement filed with the
Securities and Exchange Commission on April 20, 2005 (File No. 0-22490))
*
Air Carrier Certificate, effective August 28, 2003 (incorporated herein by reference to Exhibit 10.5 to the registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 2003 filed with the Securities and Exchange Commission on March 11, 2004 (File No. 0-22490))
Form of Director Indemnification Agreement (incorporated herein by reference to Exhibit 10.4 to the registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 2017 filed with the Securities and Exchange Commission on February 23, 2018 (File No. 0-22490))
Form of Non-Qualified Stock Option Agreement under the registrant's Amended and Restated Stock Option and Incentive Plan (incorporated herein by
reference to Exhibit 10.16 to the registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2010 filed with the Securities and
Exchange Commission on February 24, 2011 (File No. 0-22490))
Forward Air Corporation Amended and Restated Stock Option and Incentive Plan, as further amended and restated on February 7, 2013 (incorporated
herein by reference to Exhibit 10.1 to the registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 13,
2013 (File No. 0-22490))
First Amendment to the Forward Air Corporation Amended and Restated Stock Option and Incentive Plan (incorporated herein by reference to Exhibit
10.1 to the registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2016, filed with the Securities and Exchange Commission
on April 27, 2016 (File No. 0-22490))
Form of Nonqualified Stock Option Agreement under the registrant’s Amended and Restated Stock Option and Incentive Plan (incorporated herein by
reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on February 12, 2016 (File
No. 0-22490))
Form of CEO Nonqualified Stock Option Agreement under the registrant’s Amended and Restated Stock Option and Incentive Plan (incorporated herein
by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on February 12, 2016
(File No. 0-22490))
Form of Non-Employee Director Restricted Stock Units Agreement under the registrant’s Amended and Restated Non- Employee Director Stock Plan
(incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on
May 10, 2016 (File No. 0-22490))
Form of Non-Employee Director Restricted Stock Agreement under the registrant’s Amended and Restated Non-Employee Director Stock Plan
(incorporated herein by reference to Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on
May 10, 2016 (File No. 0-22490))
Form of Employee Restricted Share Agreement under the registrant’s 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference to
Exhibit 10.2 to the registrant’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2016 filed with the Securities and Exchange
Commission on July 27, 2016))
*
*
*
*
*
*
*
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.18A
10.18B
10.18C
10.19
10.20
10.21
10.22
10.23
10.24
10.25
10.26
* Form of CEO Nonqualified Stock Option Agreement under the registrant’s 2016 Omnibus Incentive Compensation Plan (incorporated herein by
reference to Exhibit 10.41 to the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 22, 2017)
* Form of Nonqualified Stock Option Agreement under the registrant’s 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference to
Exhibit 10.44 to the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 22, 2017)
* Form of Performance Share Agreement under the registrant’s 2016 Omnibus Compensation Plan (incorporated herein by reference to Exhibit 10.45 to
the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on February 22, 2017)
* Form of Notice of Grant of Performance Shares under the registrant’s 2016 Omnibus Compensation Plan (incorporated herein by reference to Exhibit
10.1 to the registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on April 27, 2017)
* Forward Air Corporation 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference to Exhibit 10.1 to the registrant’s Quarterly
Report on Form 10-Q filed with the Securities and Exchange Commission on July 27, 2017 (File No. 0-22490))
* Amended and Restated Non-Employee Director Stock Plan (incorporated herein by reference to Exhibit 10.2 to the registrant’s Quarterly Report on
Form 10-Q filed with the Securities and Exchange Commission on July 27, 2017 (File No. 02-22490))
Credit Agreement dated September 29, 2017 among Forward Air Corporation and Forward Air, Inc., as the borrowers, the subsidiaries of the borrowers
identified therein as the guarantors, Bank of America, N.A., U.S. Bank National Association and the other lenders party thereto (incorporated herein by
reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on October 3, 2017)
First Amendment dated April 16, 2020 to Credit Agreement dated September 29, 2017 by and among Forward Air Corporation and Forward Air, Inc., as
borrowers, certain subsidiaries of the borrowers as guarantors, Bank of America, N.A., as administrative agent and lender, U.S. Bank National
Association, as lender, and the other lenders party thereto (incorporated herein by reference to Exhibit 10.1 to the registrant's Quarterly Report on Form
10-Q filed with the Securities and Exchange Commission on May 1, 2020)
Second Amendment dated July 20, 2021 to Credit Agreement dated September 29, 2017 by and among Forward Air Corporation and Forward Air, Inc.,
as borrowers, certain subsidiaries of the borrowers as guarantors, Bank of America, N.A., as administrative agent and lender, U.S. Bank National
Association, as lender and the other lenders part thereto (incorporated herein by reference to Exhibit 10.3 to the registrant’s Quarterly Report on Form
10-Q filed with the Securities and Exchange Commission on August 10, 2021)
Third Amendment, dated December 29, 2021, to the Credit Agreement dated September 29, 2017 by and among Forward Air Corporation and Forward
Air, Inc., as borrowers, certain subsidiaries of the borrowers as guarantors, Bank of America, N.A., as administrative agent and lender, U.S. Bank
National Association, as lender and the other lenders part thereto (incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on
Form 8-K filed with the Securities and Exchange Commission on January 5, 2022)
* Form of CEO Nonqualified Stock Option Agreement under the registrant’s 2016 Omnibus Incentive Compensation Plan (incorporated herein by
reference to Exhibit 10.4 to the registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on April 26, 2018)
* Form of CEO Performance Share Agreement under the registrant’s 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference to
Exhibit 10.5 to the registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on April 26, 2018)
* Form of CEO Restricted Stock Agreement under the registrant’s 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference to
Exhibit 10.6 to the registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on April 26, 2018)
* Employment Agreement, dated June 6, 2018, between Forward Air Corporation and Thomas Schmitt (incorporated herein by reference to Exhibit 10.1 to
the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 12, 2018)
* Restrictive Covenants Agreement, dated June 6, 2018, between Forward Air Corporation and Thomas Schmitt (incorporated herein by reference to
Exhibit 10.2 to the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 12, 2018)
* Waiver and Acknowledgment, dated June 11, 2018 between Forward Air Corporation and Bruce Campbell (incorporated herein by reference to Exhibit
10.3 to the registrant’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 12, 2018)
Consulting Agreement effective May 7, 2019, between Forward Air Corporation and Bruce A. Campbell (incorporated herein by reference to Exhibit
10.2 to the registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on April 25, 2019)
Form of Performance Share Agreement (Total Shareholder Return) under the registrant's 2016 Omnibus Incentive Compensation Plan (incorporated
herein by reference to Exhibit 10.3 to the registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on April 25,
2019)
10.27
10.28
10.29
10.30
10.31
10.32
10.33
10.34
10.35
10.36
10.37
10.38
10.39
10.40
10.41
10.42
10.43
10.44
10.45
Form of Performance Share Agreement (EBITDA per Share) under the registrant's 2016 Omnibus Incentive Compensation Plan (incorporated herein by
reference to Exhibit 10.4 to the registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on April 25, 2019)
Scott E. Schara Offer Letter, dated as of July 23, 2020 (incorporated herein by reference to Exhibit 10.1 to the registrant's Current Report on Form 8-K
filed with the Securities and Exchange Commission on July 27, 2020)
*
* Amended and Restated Consulting Agreement effective July 28, 2020, between Forward Air Corporation and Matthew J. Jewell (incorporated herein by
*
reference to Exhibit 10.2 to the registrant's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on July 31, 2020)
Advisory Agreement effective April 5, 2021, between Forward Air Corporation and Michael J. Morris (incorporated herein by reference to Exhibit 10.1
to the registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on May 4, 2021)
Amendment No. 1 dated October 29, 2021 to Advisory Agreement, dated October 29, 2021, between Forward Air Corporation and Michael J. Morris
(incorporated herein by reference to Exhibit 10.4 to the registrant’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on
November 8, 2021)
Rebecca J. Garbrick Offer Letter dated as of June 21, 2021 (incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-
K filed with the Securities and Exchange Commission on June 25, 2021 (File No. 0-22490))
Form of CEO Nonqualified Stock Option Agreement under the registrant's 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference
to Exhibit 10.35 to the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 1, 2022)
Form of Non-Qualified Stock Option Agreement under the registrant's 2016 Omnibus Incentive Compensation Plan (incorporated herein by reference to
Exhibit 10.36 to the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 1, 2022)
Form of Performance Share Agreement (Total Shareholder Return) under the registrant's 2016 Omnibus Incentive Compensation Plan (incorporated
herein by reference to Exhibit 10.37 to the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 1,
2022)
Forward Air Corporation Executive Severance and Change in Control Plan Amended and Restated, effective as of October 25, 2021 (incorporated herein
by reference to Exhibit 10.38 to the registrant’s Annual Report on Form 10-K filed with the Securities and Exchange Commission on March 1, 2022)
Separation and General Release Agreement between Scott E. Schara and Forward Air Corporation (incorporated herein by reference to Exhibit 10.1 to the
registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2022 filed with the Securities and Exchange Commission on May 09,
2022)
Equity Purchase Agreement, dated December 20, 2023 by and between Forward Air Corporation, Forward Air Final Mile, LLC, FFM, LLC, Forward Air,
Inc., FAF, Inc., and Hub Group, Inc. (incorporated herein by reference to Exhibit 10.1 to the registrant’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 27, 2023)
Credit Agreement, dated as of December 19, 2023, by and among, GN Loanco, LLC, the other credit parties party thereto from time to time, Citibank,
N.A. and the lenders and L/C issuers party thereto from time to time (incorporated herein by reference to the registrant's Current Report on Form 8-K filed
with the Securities and Exchange Commission on January 31, 2024).
Escrow Release Date Assumption and Joinder Agreement, dated as of January 25, 2024, among GN Loanco, LLC, Clue Opco LLC, Forward Air
Corporation, the subsidiary guarantors party thereto and Citibank, N.A. (incorporated herein by reference to the registrant's Current Report on Form 8-K
filed with the Securities and Exchange Commission on January 31, 2024).
Escrow Release Date Incremental Revolving Amendment, dated as of January 25, 2024, among Clue Opco LLC, the credit parties party thereto from time
to time, the lenders party thereto from time to time and Citibank, N.A. (incorporated herein by reference to the registrant's Current Report on Form 8-K
filed with the Securities and Exchange Commission on January 31, 2024).
Shareholder Agreement, dated as of January 25, 2024, by and among, Forward Air Corporation, REP Omni Holdings, L.P. and the other parties thereto
(incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 31,
2024).
Shareholder Agreement, dated as of January 25, 2024, by and among, Forward Air Corporation, EVE Omni Investor, LLC and Omni Investor Holdings,
LLC and the other parties thereto (incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 31, 2024).
Investor Rights Agreement, dated as of January 25, 2024, by and among Forward Air Corporation, REP Omni Holdings, L.P. and Omni Investor Holdings
L.P. (incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 31,
2024).
Tax Receivable Agreement, dated as of January 25, 2024, by and among Forward Air Corporation, Central States Logistics, Inc., Clue Opco LLC and the
members from time to time party thereto (incorporated herein by reference to the registrant's Current Report on Form 8-K filed with the Securities and
Exchange Commission on January 31, 2024).
10.46
21.1
23.1
31.1
31.2
32.1
32.2
101.INS
101.SCH
101.CAL
101.DEF
101.LAB
101.PRE
104
Amendment No. 2, dated as of February 12, 2024, among Clue Opco LLC, the revolving lenders party thereto and Citibank, N.A. (incorporated herein
by reference to the registrant's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 15, 2024).
Subsidiaries of the registrant
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
Certification of Principal Executive Officer Pursuant to Exchange Act Rule 13a-14(a) (17 CFR 240.13a-14(a))
Certification of Principal Financial Officer Pursuant to Exchange Act Rule 13a-14(a) (17 CFR 240.13a-14(a))
Certification of Principal Executive Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
Certification of Principal Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
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Cover Page Interactive File (formatted in Inline XBRL and contained in Exhibit 101).
*Denotes a management contract or compensatory plan or arrangement.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SIGNATURES
Date:
March 15, 2024
By:
Forward Air Corporation
/s/ Rebecca J. Garbrick
Rebecca J. Garbrick
Chief Financial Officer and Treasurer
(Principal Financial Officer, Principal Accounting Officer
and Duly Authorized Officer)
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
Signature
Title
/s/ Michael L. Hance
Michael L. Hance
/s/ Rebecca J. Garbrick
Rebecca J. Garbrick
/s/ George Mayes
George Mayes
/s/ Ronald W. Allen
Ronald W. Allen
/s/ Ana B. Amicarella
Ana B. Amicarella
/s/ Charles Anderson
Charles Anderson
/s/ Valerie A. Bonebrake
Valerie A. Bonebrake
/s/ C. Robert Campbell
C. Robert Campbell
/s/ R. Craig Carlock
R. Craig Carlock
/s/ Robert Edwards, Jr.
Robert Edwards, Jr.
/s/ Michael Hodge
Michael Hodge
/s/ G. Michael Lynch
G. Michael Lynch
/s/ Chitra Nayak
Chitra Nayak
/s/ Javier Polit
Javier Polit
/s/ Christopher Schmachtenberger
Christopher Schmachtenberger
/s/ Laurie A. Tucker
Laurie A. Tucker
/s/ W. Gil West
W. Gil West
Interim Chief Executive Officer, Chief Legal Officer and
Secretary
(Principal Executive Officer)
Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal Accounting Officer)
Chairman and Director
Director
Director
Director
Director
Director
Director
Director
Director
Director
Director
Director
Director
Director
Director
Date
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
March 15, 2024
Annual Report on Form 10-K
Item 8, Item 15(a)(1) and (2), (a)(3), (b) and (c)
List of Financial Statements and Financial Statement Schedule
Financial Statements and Supplementary Data
Certain Exhibits
Financial Statement Schedule
Year Ended December 31, 2023
Forward Air Corporation
Greeneville, Tennessee
F-1
Forward Air Corporation
Form 10-K — Item 8 and Item 15(a)(1) and (2)
Index to Financial Statements and Financial Statement Schedule
The following consolidated financial statements of Forward Air Corporation are included as a separate section of this report:
Report of Ernst & Young LLP, Independent Registered Public Accounting Firm (PCAOB ID: 42)
Consolidated Balance Sheets — December 31, 2023 and 2022
Consolidated Statements of Comprehensive Income — Years Ended December 31, 2023, 2022 and 2021
Consolidated Statements of Shareholders’ Equity — Years Ended December 31, 2023, 2022 and 2021
Consolidated Statements of Cash Flows — Years Ended December 31, 2023, 2022 and 2021
Notes to Consolidated Financial Statements — December 31, 2023
The following financial statement schedule of Forward Air Corporation is included as a separate section of this report.
Schedule II - Valuation and Qualifying Accounts
Page No.
F-3
F-5
F-6
F-7
F-8
F-10
S-1
All other schedules for which provision is made in the applicable accounting regulation of the Securities and Exchange Commission are not required under the related
instructions or are inapplicable and, therefore, have been omitted.
F-2
To the Shareholders and the Board of Directors of Forward Air Corporation
Opinion on the Financial Statements
Report of Independent Registered Public Accounting Firm
We have audited the accompanying consolidated balance sheets of Forward Air Corporation (the Company) as of December 31, 2023 and 2022, the related
consolidated statements of comprehensive income, shareholders’ equity, and cash flows for each of the three years in the period ended December 31, 2023, and the related notes
and financial statement schedule listed in the Index at Item 15(a) (collectively referred to as the “consolidated financial statements”). In our opinion, the consolidated financial
statements present fairly, in all material respects, the financial position of the Company at December 31, 2023 and 2022, and the results of its operations and its cash flows for
each of the three years in the period ended December 31, 2023, in conformity with U.S. generally accepted accounting principles.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company’s internal control
over financial reporting as of December 31, 2023, based on criteria established in Internal Control-Integrated Framework issued by the Committee of Sponsoring Organizations
of the Treadway Commission (2013 framework) and our report dated March 15, 2024 expressed an unqualified opinion thereon.
Basis for Opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements
based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S.
federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance
about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing procedures to assess the risks of material
misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test
basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates
made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matter
The critical audit matter communicated below is a matter arising from the current period audit of the financial statements that was communicated or required to be
communicated to the audit committee and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging,
subjective or complex judgments. The communication of the critical audit matter does not alter in any way our opinion on the consolidated financial statements, taken as a
whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it
relates.
F-3
Description of the
Matter
Self-Insurance Loss Reserves
The liability for self-insurance loss reserves totaled $66.4 million at December 31, 2023 which
includes self-insurance reserves for vehicle liability claims. The long-term portion of this liability was
included in “Other long-term liabilities,” and the remainder was included in “Accrued expenses” on the
Company’s Consolidated Balance Sheet. As more fully described in Note 1 to the consolidated
financial statements, the self-insurance reserves include estimates for both known claims and future
claims development and are based on company-specific and industry data, as well as general economic
information.
Auditing the Company’s self-insurance reserves for vehicle liability claims was complex, highly
subjective and required significant judgment due to the actuarial techniques and significant
assumptions used. The Company utilizes actuarial analyses to evaluate open claims and estimate the
ongoing development exposure. The most significant assumptions used in the estimation process
include determining the trend in loss costs, the expected consistency in the frequency and severity of
claims incurred but not yet reported, changes in the timing of the reporting of losses from the loss date
to the notification date, and the expected costs to settle unpaid claims.
How We Addressed
the Matter in Our
Audit
We tested internal controls over management’s review of the completeness and accuracy of data inputs
used in the actuarial analysis and review of the actuarial assumptions and reserve calculations.
To test the self-insurance loss reserves for vehicle liability claims, our audit procedures included,
among others, evaluating the methodologies used and the significant actuarial assumptions discussed
above, as well as performing substantive procedures over underlying data and calculations used in the
analyses. We tested claims data by agreeing the data to supporting source documentation and payment
information. We evaluated whether changes to the reserves for known claims were being recognized
timely based on the underlying available data and current estimates. We involved actuarial specialists
to assist in our evaluation of the actuarial methodologies used as well as to independently calculate a
range of reserve estimates for comparison to the recorded reserves.
/s/ Ernst & Young LLP
We have served as the Company’s auditor since 1991.
Atlanta, GA
March 15, 2024
F-4
Forward Air Corporation
Consolidated Balance Sheets
(In thousands, except share data)
December 31, 2023
December 31, 2022
Assets
Current assets:
Cash and cash equivalents
Restricted cash equivalents
Accounts receivable, less allowance of $2,206 in 2023 and $3,129 in 2022
Other receivables
Prepaid expenses
Other current assets
Current assets held for sale
Total current assets
Noncurrent restricted cash equivalents
Property and equipment, net of accumulated depreciation and amortization of $250,185 in 2023
and $218,145 in 2022
Operating lease right-of-use assets
Goodwill
Other acquired intangibles, net of accumulated amortization of $127,032 in 2023 and $110,993
in 2022
Other assets
Noncurrent assets held for sale
Total assets
Liabilities and Shareholders’ Equity
Current liabilities:
Accounts payable
Accrued expenses
Other current liabilities
Current portion of debt and finance lease obligations
Current portion of operating lease liabilities
Current liabilities held for sale
Total current liabilities
Finance lease obligations, less current portion
Long-term debt, less current portion and debt issuance costs
Long-term debt held in escrow
Operating lease liabilities, less current portion
Other long-term liabilities
Deferred income taxes
Noncurrent liabilities held for sale
Shareholders’ equity:
Preferred stock, $0.01 par value: Authorized shares - 5,000,000; no shares issued or
outstanding in 2023 and 2022
Common stock, $0.01 par value: Authorized shares - 50,000,000; issued and outstanding
shares - 25,670,663 in 2023 and 26,461,293 in 2022
Additional paid-in capital
Retained earnings
Total shareholders’ equity
Total liabilities and shareholders’ equity
$
$
$
$
121,969
39,604
153,267
5,408
25,682
1,098
—
347,028
1,790,500
258,095
111,552
278,706
134,789
58,863
—
2,979,533
45,430
62,948
71,727
12,645
44,344
—
237,094
26,736
—
1,790,500
71,598
47,144
42,200
—
—
257
283,684
480,320
764,261
2,979,533
$
$
$
$
45,822
—
188,229
—
24,769
10,553
34,942
304,315
—
246,329
131,097
257,987
115,582
51,739
101,027
1,208,076
50,094
49,918
3,944
9,315
42,266
13,861
169,398
15,711
106,588
—
92,903
59,044
51,093
6,095
—
265
270,855
436,124
707,244
1,208,076
The accompanying notes are an integral part of the consolidated financial statements.
F-5
Forward Air Corporation
Consolidated Statements of Comprehensive Income
(In thousands, except per share data)
Year Ended
December 31, 2023 December 31, 2022 December 31, 2021
1,387,227
$
1,679,634 $
1,370,735 $
586,195
287,566
87,413
57,405
50,133
22,004
191,809
1,282,525
88,210
(31,571)
(31,571)
56,639
13,836
42,803
124,548
167,351 $
1.64 $
4.78
6.42 $
1.64 $
4.77
6.40 $
0.96 $
730,412
302,759
85,290
42,552
47,478
26,956
196,596
1,432,043
247,591
(5,138)
(5,138)
242,453
63,039
179,414
13,777
193,191 $
6.66 $
0.51
7.17 $
6.63 $
0.51
7.14 $
0.96 $
665,421
288,171
68,237
34,966
39,409
16,478
127,520
1,240,202
147,025
(4,338)
(4,338)
142,687
35,808
106,879
(1,020)
105,859
3.91
(0.04)
3.87
3.89
(0.04)
3.85
0.84
$
$
$
$
$
$
Operating revenue
Operating expenses:
Purchased transportation
Salaries, wages and employee benefits
Operating leases
Depreciation and amortization
Insurance and claims
Fuel expense
Other operating expenses
Total operating expenses
Income from continuing operations
Other expense:
Interest expense, net
Total other expense
Income before income taxes
Income tax expense
Net income from continuing operations
Income (loss) from discontinued operations, net of tax
Net income and comprehensive income
Basic net income (loss) per share:
Continuing operations
Discontinued operations
Net income per basic share
Diluted net income (loss) per share:
Continuing operations
Discontinued operations
1
Net income per diluted share
Dividends per share:
1
Rounding may impact summation of amounts.
The accompanying notes are an integral part of the consolidated financial statements.
F-6
Forward Air Corporation
Consolidated Statements of Shareholders' Equity
(In thousands)
Common Stock
Shares
Amount
Additional
Paid-in
Capital
Retained Earnings
Total
Shareholders’
Equity
Balance at December 31, 2020
Net income
Stock options exercised
Common stock issued under employee stock purchase plan
Share-based compensation expense
Payment of dividends to shareholders
Payment of minimum tax withholdings on share-based awards
Repurchases and retirement of common stock
Issuance of share-based awards
Balance at December 31, 2021
Net income
Stock options exercised
Common stock issued under employee stock purchase plan
Share-based compensation expense
Payment of dividends to shareholders
Payment of minimum tax withholdings on share-based awards
Repurchases and retirement of common stock
Issuance of share-based awards
Balance at December 31, 2022
Net income
Common stock issued under employee stock purchase plan
Share-based compensation expense
Payment of dividends to shareholders
Payment of minimum tax withholdings on share-based awards
Repurchases and retirement of common stock
Issuance of share-based awards
Balance at December 31, 2023
27,316 $
—
69
12
—
—
(39)
(535)
146
26,969 $
—
3
10
—
—
(31)
(600)
111
26,462 $
—
11
—
—
(40)
(883)
121
25,671 $
273 $
—
1
—
—
—
—
(5)
1
270 $
—
—
—
—
—
—
(6)
1
265 $
—
—
—
—
—
(9)
1
257 $
242,916 $
—
3,705
911
10,929
14
—
—
(1)
258,474 $
—
206
783
11,376
17
—
—
(1)
270,855 $
—
800
12,012
18
—
—
(1)
283,684 $
304,140 $
105,859
—
—
—
(22,990)
(3,115)
(48,984)
—
334,910 $
193,191
—
—
—
(25,882)
(3,330)
(62,765)
—
436,124 $
167,351
—
—
(25,013)
(4,340)
(93,802)
—
480,320 $
547,329
105,859
3,706
911
10,929
(22,976)
(3,115)
(48,989)
—
593,654
193,191
206
783
11,376
(25,865)
(3,330)
(62,771)
—
707,244
167,351
800
12,012
(24,995)
(4,340)
(93,811)
—
764,261
The accompanying notes are an integral part of the consolidated financial statements.
F-7
Year Ended
December 31,
2023
December 31, 2022 December 31, 2021
42,803 $
179,414 $
106,879
Forward Air Corporation
Consolidated Statements of Cash Flows
(In thousands)
Operating activities:
Net income from continuing operations
Adjustments to reconcile net income of continuing operations to net cash provided by operating activities of
continuing operations:
$
Depreciation and amortization
Change in fair value of earn-out liability
Share-based compensation expense
Provision for revenue adjustments
Deferred income tax expense
Other
Changes in operating assets and liabilities, net of effects from the purchase of acquired companies:
Accounts receivable
Other receivables
Other current and noncurrent assets
Accounts payable, accrued expenses and other long-term liabilities
Net cash provided by operating activities of continuing operations
Investing activities:
Proceeds from sale of property and equipment
Purchases of property and equipment
Purchase of businesses, net of cash acquired
Net cash used in investing activities of continuing operations
Financing activities:
Proceeds from credit facility
Payments on credit facility
Proceeds from long-term debt held in escrow
Repayments of finance lease obligations
Payment of debt issuance costs
Proceeds from issuance of common stock upon stock option exercises
Payment of earn-out liability
Payments of dividends to shareholders
Repurchases and retirement of common stock
Proceeds from common stock issued under employee stock purchase plan
Payment of minimum tax withholdings on share-based awards
Contributions from subsidiary held for sale
Net cash provided by (used in) financing activities of continuing operations
Net increase in cash, cash equivalents and restricted cash equivalents from continuing operations
Cash from discontinued operation:
Net cash (used in) provided by operating activities of discontinued operations
Net cash provided by (used in) investing activities of discontinued operations
Net cash used in financing activities of discontinued operations
Net increase (decrease) in cash, cash equivalents and restricted cash equivalents
Cash, cash equivalents, and restricted cash equivalents at beginning of period of continuing operations
Cash at beginning of period of discontinued operations
Net increase (decrease) in cash, cash equivalents, and restricted cash equivalents
Less: cash at end of period of discontinued operations
57,405
—
11,495
5,091
(8,893)
(1,180)
30,555
(5,408)
30,683
36,661
199,212
3,741
(30,725)
(56,703)
(83,687)
70,000
(178,500)
1,790,500
(9,500)
—
—
—
(24,995)
(93,811)
800
(4,340)
240,572
1,790,726
1,906,251
(17,824)
258,525
(240,701)
1,906,251
45,822
—
1,906,251
—
Cash, cash equivalents, and restricted cash equivalents at end of period of continuing operations
$
1,952,073 $
F-8
42,552
(294)
10,661
6,426
7,686
(1,279)
(2,588)
8,097
(13,280)
12,766
250,161
2,372
(39,254)
(66,105)
(102,987)
—
(49,000)
—
(6,108)
—
206
(91)
(25,865)
(62,771)
783
(3,330)
7,508
(138,668)
8,506
8,929
(1,475)
(7,454)
8,506
37,316
—
8,506
—
45,822 $
34,966
(496)
10,500
6,339
1,421
207
(42,458)
(8,097)
(6,905)
18,252
120,608
2,643
(38,375)
(59,866)
(95,598)
195,000
(150,000)
—
(2,423)
(482)
3,706
(6,519)
(22,976)
(48,989)
911
(3,115)
6,939
(27,948)
(2,938)
(347)
7,286
(6,939)
(2,938)
40,254
—
(2,938)
—
37,316
Forward Air Corporation
Consolidated Statements of Cash Flows
(In thousands)
Reconciliation of cash, cash equivalents, and restricted cash equivalents:
Cash and cash equivalents
Restricted cash equivalents
Noncurrent restricted cash equivalents
Total cash, cash equivalents, and restricted cash equivalents shown in the statement of cash flow:
Non-cash activity:
Equipment acquired under finance leases
Year Ended
December 31,
2023
December 31, 2022 December 31, 2021
121,969 $
39,604
1,790,500
1,952,073 $
45,822 $
—
—
45,822 $
37,316
—
—
37,316
25,217 $
14,422 $
6,758
$
$
$
The accompanying notes are an integral part of the consolidated financial statements
F-9
Forward Air Corporation
Notes To Consolidated Financial Statements
December 31, 2023
(In thousands, except per share data)
1. Operations and Summary of Significant Accounting Policies
Basis of Presentation and Principles of Consolidation
Forward Air Corporation and its subsidiaries (the “Company”) is a leading asset-light freight and logistics company. The Company has two reportable segments:
Expedited Freight and Intermodal. The Company conducts business in the United States, Canada, and Mexico.
The Expedited Freight segment provides expedited regional, inter-regional and national less-than-truckload (“LTL”) and truckload services. Expedited Freight also
offers customers local pick-up and delivery and other services including shipment consolidation and deconsolidation, warehousing, customs brokerage and other handling
services.
The Intermodal segment provides first- and last-mile high value intermodal container drayage services both to and from seaports and railheads. Intermodal also offers
dedicated contract and container freight station (“CFS”) warehouse and handling services.
The Company’s consolidated financial statements includes the Company and its wholly-owned subsidiaries. Intercompany accounts and transactions have been
eliminated in consolidation.
The Company holds interests in certain wholly-owned subsidiaries of Omni Newco, LLC (“Omni”) that are considered Variable Interest Entities (“VIEs”). VIEs are
legal entities in which equity investors do not have sufficient equity at risk for the entity to independently finance its activities, or as a group, the holders of the equity
investment at risk lack the power through voting or similar rights to direct the activities of the entity that most significantly impact its economic performance, or do not have the
obligation to absorb the expected losses of the entity or the right to receive expected residual returns of the entity. Consolidation of a VIE is required if a reporting entity is the
primary beneficiary of the VIE.
Investments in these VIEs are evaluated to determine if the Company is the primary beneficiary. This evaluation gives appropriate consideration to the design of the
entity and the variability that the entity was designed to create and pass along, the relative power of each party, and to the Company’s obligation to absorb losses or receive
residual returns of the entity. The Company concluded that the VIEs should be consolidated because the Company has (i) the power to direct the activities that most
significantly impact the economic performance of the VIE and (ii) the obligation to absorb losses and the right to receive benefits, which could potentially be significant. For
changes in facts and circumstances, the Company re-assesses whether or not it is a primary beneficiary of a VIE. Refer to Note 3, Acquisitions, for additional disclosures
regarding the Company’s VIEs.
In December 2023, the Board of Directors (the “Board”) of the Company approved a strategy to divest of the Final Mile business (“Final Mile”), and the sale of Final
Mile was completed on December 20, 2023. Final Mile provided delivery and installation of heavy bulky appliances such as washing machines, dryers, dishwashers and
refrigerators throughout the United States. As a result of the divestiture of the Final Mile business, the results of operations for Final Mile are presented as a discontinued
operation in the Consolidated Statements of Comprehensive Income for all periods presented. In addition, assets and liabilities were reflected as “assets and liabilities held for
sale” in the Consolidated Balance Sheets for the prior period. Unless otherwise noted, amounts, percentages and discussion for all periods reflect the results of operations,
financial condition and cash flows from the Company’s continuing operations. Refer to Note 2, Discontinued Operation and Held for Sale, for further discussion.
Use of Estimates
The preparation of the consolidated financial statements in conformity with U.S. generally accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and expenses during
the reporting period. Actual results could differ from those estimates. Certain prior period amounts have been reclassified to conform to the current period presentation.
F-10
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Cash and Cash Equivalents
Cash as of December 31, 2023 and 2022 of $111,969 and $30,743, respectively, consisted of cash on hand and bank deposits. Cash equivalents as of December 31,
2023 and 2022 of $10,000 and $15,079, respectively, consisted of money market deposits. The Company considers all investments with an original maturity of three months or
less to be cash and cash equivalents.
Restricted Cash and Cash Equivalents
Restricted cash equivalents and noncurrent restricted cash equivalents are related to the amounts held in escrow in connection with the financing of the acquisition of
Omni. Amounts are restricted until the acquisition of Omni is closed. Refer to Note 3, Acquisitions, for additional disclosures regarding the amounts held in escrow.
Allowance for Doubtful Accounts and Revenue Adjustments
The Company has a broad range of customers, including freight forwarders, third-party logistics companies, passenger and cargo airlines, steamship lines, and
retailers, located across a diverse geography. In circumstances in which the Company is aware of a specific customer’s inability to meet its financial obligations to the
Company, the Company records a specific reserve in order to reduce the net recognized accounts receivable to the amount the Company reasonably believes will be collected.
For all other customers, the Company recognizes a general reserve based on a percentage of revenue to ensure accounts receivables are properly recorded at the net amount
expected to be collected. The Company sets the general reserve based on historical collection experience combined with forecasts about any expected changes to the collection
experience. If circumstances change, expected recoverability of amounts due to the Company may change by a material amount. Accounts are written off after all means of
collection, including legal action, have been exhausted.
The Company records an allowance for revenue adjustments as result of future billing rate changes. Adjustments arise: (a) when small rate changes (“spot quotes”) are
granted to customers that differ from the standard rates in the billing system; (b) when freight requires dimensionalization or is reweighed which results in a different rate; (3)
when billing errors occur; and (4) when data entry errors occur. In 2023, average revenue adjustments per month were approximately $424 on average revenue per month of
approximately $114,228 (0.4% of monthly revenue). The Company estimates an allowance for revenue adjustments based on historical experience, trends and current
information. The average amount of revenue adjustments per month can vary in relation to the level of revenue or as a result of other factors. Both the average monthly revenue
adjustments and the average lag assumptions are continually evaluated for appropriateness.
Inventories
Inventories are valued at the lower of cost or net realizable value, using first-in, first-out method. Net realizable value is the estimated selling price in the ordinary
course of business. Replacement parts are expensed when placed in service, while tires are capitalized and amortized over their estimated useful life. Expenses related to the
utilization of inventories are recorded in “Other operating expenses” in the Consolidated Statements of Comprehensive Income.
Property and Equipment
Property and equipment are recorded at cost, less accumulated depreciation and amortization. Depreciation is provided on a straight-line basis over the estimated useful
lives of 30 to 40 years for building and improvements, three to ten years for equipment, the lesser of the estimated useful life or the initial lease term for leasehold improvements
and five years for computer software. Land is not depreciated and construction in progress is not depreciated until ready for service. Expenditures for maintenance and repairs
are charged to expense as incurred.
For internally developed software, all costs incurred during planning and evaluation are expensed. Costs incurred during the application development stage are
capitalized and included in property and equipment. Capitalized software also includes software acquired for internal use.
F-11
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Property and equipment as of December 31, 2023 and 2022 consisted of the following:
Land
Buildings and improvements
Equipment
Leasehold improvements
Computer software
Construction in progress
Total property and equipment
Less accumulated depreciation and amortization
Total property and equipment, net
December 31, 2023
26,479
$
94,277
320,557
24,386
31,063
11,518
508,280
250,185
258,095
$
December 31, 2022
26,479
$
94,277
283,526
16,779
29,511
13,902
464,474
218,145
246,329
$
As of December 31, 2023 and 2022, the net book value of computer software included in property and equipment, net was $7,361 and $8,737, respectively. For the
years ended December 31, 2023, 2022 and 2021, amortization expense of computer software was $2,909, $2,558 and $2,394, respectively.
Cloud Computing Costs
The Company capitalizes the costs incurred during the implementation stage for cloud computing or hosting arrangements. Costs incurred in the preliminary project
stage and post-implementation stage, which includes maintenance and training costs, are expensed as incurred. Capitalized software costs are amortized using the straight-line
method over three to five years and are recorded in “Prepaid expenses” and “Other assets” in the Consolidated Balance Sheets.
Goodwill, Intangible Assets and Other Long-Lived Assets
The Company tests goodwill for impairment, at the reporting unit level, annually and when events or circumstances indicate that fair value of a reporting unit may be
below its carrying value. A reporting unit is an operating segment or one level below an operating segment, for example, a component. The Company’s reporting units are not
its reportable segments.
Goodwill is evaluated annually as of June 30 for impairment using a qualitative assessment or a quantitative one-step assessment. If the Company elects to perform a
qualitative assessment and determines the fair value of its reporting units more likely than not exceed the carrying value of their net assets, no further evaluation is necessary.
For reporting units where the Company performs a one-step quantitative assessment, the Company compares the estimated fair value of each reporting unit, which is determined
based on a combination of an income approach using a discounted cash flow model, and a market approach, which considers comparable companies, to its respective carrying
value of net assets, including goodwill. If the estimated fair value of the reporting unit exceeds its carrying value of net assets, the goodwill is not considered impaired. If the
carrying value of net assets is higher than the estimated fair value of the reporting unit, the impairment charge is the amount by which the carrying value exceeds the reporting
unit’s estimated fair value.
The Company reviews its long-lived assets, which include intangible assets subject to amortization, for impairment whenever events or changes in circumstances
indicate that the carrying amount of an asset may not be recoverable. The evaluation for recoverability is performed at a level where independent cash flows may be attributed
to either an asset or asset group. If the Company determines that the carrying amount of an asset or asset group is not recoverable based on the expected undiscounted future
cash flows of the asset or asset group, an impairment loss is recorded equal to the excess of the carrying amounts over the estimated fair value of the long-lived assets. Estimates
of future cash flows are based on various factors, including current operating results, expected market trends and competitive influences. The Company also evaluates the
amortization periods assigned to its intangible assets to determine whether events or changes in circumstances warrant revised estimates of useful lives. Assets to be disposed of
by sale are reported at the lower of the carrying amount or estimated fair value, less estimated costs to sell.
F-12
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
The results of the Company’s goodwill impairment analyses conducted as of June 30, 2023, 2022 and 2021 indicated that no reduction in the carrying amount of the
Company’s goodwill was required.
Changes in the carrying amount of goodwill during the years ended December 31, 2023, 2022 and 2021 are summarized as follows:
Expedited Freight
Intermodal
Consolidated
Balance as of December 31, 2021
Acquisitions
Acquisition adjustment
Balance as of December 31, 2022
Acquisition
Acquisition adjustment
Balance as of December 31, 2023
$
$
$
121,091
—
—
121,091
20,629
—
141,720
$
$
$
97,464
34,754
4,678
136,896
—
90
136,986
$
$
$
218,555
34,754
4,678
257,987
20,629
90
278,706
The Company’s accumulated goodwill impairment is $25,686 related to impairment charges the Company recorded during 2016 pertaining to its Truckload Services
("TLS") reporting unit. The TLS reporting unit operates within the Expedited Freight reportable segment. As of December 31, 2023, approximately $247,760 of goodwill is
deductible for tax purposes.
The Company amortizes certain acquired identifiable intangible assets on a straight-line basis over their estimated useful lives, which range from one year to 20 years.
The acquired intangible assets have a weighted-average useful life as follows:
Intangible Assets
Customer relationships
Non-compete agreements
Trade names
Weighted-Average Useful Life
14 years
5 years
4 years
For the years ended December 31, 2023, 2022 and 2021, acquired intangible asset amortization was $16,039, $12,213 and $10,539, respectively. The Company
estimates amortization of existing intangible assets will be $16,053 in 2024, $16,052 in 2025, $16,030 in 2026, $15,958 in 2027, and $15,701 in 2028.
Changes in the carrying amount of acquired intangible assets during 2023 and 2022 are summarized as follows:
Balance as of December 31, 2021
Acquisitions
Acquisition adjustment
Balance as of December 31, 2022
Acquisition
Acquisition adjustment
Balance as of December 31, 2023
Customer
1
Relationships
Non-Compete
Agreements
Trade Names
Total
Gross Carrying Amount
$
$
$
202,176
21,655
(5,162)
218,669
35,200
45
253,914
$
$
$
6,826
272
(692)
6,406
—
1
6,407
$
$
$
1,500
—
—
1,500
—
—
1,500
$
$
$
210,502
21,927
(5,854)
226,575
35,200
46
261,821
F-13
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Balance as of December 31, 2021
Amortization expense
Balance as of December 31, 2022
Amortization expense
Balance as of December 31, 2023
Customer
Relationships
Non-Compete
Agreements
Trade Names
Total
Accumulated Amortization
$
$
$
91,713
11,891
103,604
15,389
118,993
$
$
$
5,567
322
5,889
650
6,539
$
$
$
1,500
—
1,500
—
1,500
$
$
$
98,780
12,213
110,993
16,039
127,032
1
Carrying value as of December 31, 2023, 2022 and 2021 is inclusive of $ 16,501 of accumulated impairment.
Accrued Expenses
Accrued expenses as of December 31, 2023 and 2022 consisted of the following:
Accrued payroll and related items
Insurance and claims accruals
Payables to Leased Capacity Providers
1
Accrued interest payable
Accrued expenses
¹ Amounts held in escrow by the VIEs.
Other Current Liabilities
Other current liabilities as of December 31, 2023 and 2022 consisted of the following:
Income taxes payable
Accrued legal and professional fees
Other
Other current liabilities
Self-Insurance Loss Reserves
December 31, 2023
December 31, 2022
15,267 $
19,566
10,663
17,452
62,948 $
21,919
19,167
8,832
—
49,918
December 31, 2023
December 31, 2022
31,190 $
34,721
5,816
71,727 $
—
1,294
2,650
3,944
$
$
$
$
The Company’s licensed motor carrier contracts with independent contractor fleets, owner-operators and other third-party transportation capacity providers for most of
the transportation services. The Company’s independent contractor fleet owners and owner-operators lease their equipment to the Company (“Leased Capacity Providers”) and
own, operate and maintain their own tractors and employ their own drivers. Under U.S. Department of Transportation regulations, the Company is liable for bodily injury and
property damage caused by the Leased Capacity Providers and employee drivers while they are operating equipment under the Company’s various motor carrier authorities. The
potential liability associated with any accident can be severe and occurrences are unpredictable.
F-14
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
For vehicle liability, the Company retains a portion of the risk. Below is a summary of the Company’s risk retention on vehicle liability insurance coverage maintained
by the Company through $10,000 (in thousands):
Company
Risk Retention
Frequency
Layer
Policy Term
Expedited Freight
LTL business $
Truckload business $
5,000 Occurrence/Accident¹
5,000 Occurrence/Accident¹
$0 to $5,000
$0 to $5,000
10/1/2023 to 10/1/2024
10/1/2023 to 10/1/2024
LTL, Truckload and Intermodal
businesses $
5,000 Policy Term Aggregate²
$5,000 to $10,000
10/1/2023 to 10/1/2024
Intermodal
¹ For each and every accident/incident, the Company is responsible for damages and defense up to these amounts, regardless of the number of claims associated with any accident/incident.
² During the Policy Term, the Company is responsible for damages and defense within the stated Layer up to the stated, aggregate amount of Company Risk Retention before insurance will contribute.
1,000 Occurrence/Accident¹
10/1/2023 to 10/1/2024
$0 to $1,000
$
Also, from time to time, when brokering freight, the Company may face claims for the “negligent selection” of outside, contracted carriers that are involved in
accidents, and the Company maintains third-party liability insurance coverage with a $100 deductible per occurrence for its brokered services. Additionally, the Company
maintains workers’ compensation insurance with a self-insured retention of $500 per occurrence.
The Company provides for the estimated costs of vehicle liability and workers’ compensation claims both reported and for claims incurred but not reported. The
amount of self-insurance loss reserves and loss adjustment expenses is determined based on an estimation process that uses information obtained from both Company-specific
and industry data, as well as general economic information. The most significant assumptions used in the estimation process include determining the trend in loss costs, the
expected consistency in the frequency and severity of claims incurred but not yet reported, changes in the timing of the reporting of losses from the loss date to the notification
date, and the expected costs to settle unpaid claims. The Company estimates its self-insurance loss exposure by evaluating the merits and circumstances surrounding individual
known claims and through actuarial analysis to determine an estimate of probable losses on claims incurred but not reported. The Company accrues for the costs of the
uninsured portion of pending claims, based on the nature and severity of individual claims and historical claims development trends. Estimating the number and severity of
claims, as well as related judgment or settlement amounts is inherently difficult. Failure to establish sufficient insurance reserves and adequately estimate for future insurance
claims may cause unfavorable differences between actual self-insurance costs and the reserve estimates.
As of December 31, 2023 and 2022, the Company recorded self-insurance loss reserves of $66,374 and $67,860, respectively, inclusive of reserves in excess of the
self-insured retention limit that are expected to be reimbursed from insurance carriers. As of December 31, 2023, $ 19,566 was recorded in “Accrued expenses” and $46,808
was recorded in “Other long-term liabilities” in the Consolidated Balance Sheets. As of December 31, 2022, $ 19,167 was recorded in “Accrued expenses” and $48,693 was
recorded in “Other long-term liabilities” in the Consolidated Balance Sheets.
As of December 31, 2023 and 2022, the Company recognized a receivable for insurance proceeds and a corresponding claims payable for vehicle liability and
workers’ compensation claims in excess of the self-insured retention limit. As of December 31, 2023 and 2022, the Company recorded $ 26,712 and $29,087, respectively, in
“Other assets” and “Other long-term liabilities” in the Consolidated Balance Sheets.
Revenue Recognition
Revenue is recognized when the Company satisfies the performance obligation by the delivery of a shipment in accordance with contractual agreements, bills of lading
and general tariff provisions. The amount of revenue recognized is measured as the consideration the Company expects to receive in exchange for those services pursuant to a
contract with a customer. A contract exists once the Company enters into a contractual agreement with a customer. The Company does not recognize revenue in cases where
collectibility is not probable, and defers recognition until collection is probable or payment is received.
F-15
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
The Company generates revenue from the delivery of a shipment and the completion of related services. Revenue for the delivery of a shipment is recorded over time
to coincide with when customers simultaneously receive and consume the benefits of the delivery services. Accordingly, revenue billed to a customer for the transportation of
freight are recognized over the transit period as the performance obligation to the customer is satisfied. The Company determines the transit period for a shipment based on the
pick-up date and the delivery date, which may be estimated if delivery has not occurred as of a reporting period. The determination of the transit period and how much of it has
been completed as of a given reporting date may require the Company to make judgments that impact the timing of revenue recognized. For delivery of shipments with a pick-
up date in one reporting period and a delivery date in another reporting period, the Company recognizes revenue based on relative transit time in each reporting period. A
portion of the total revenue to be billed to the customer after completion of a delivery is recognized in each reporting period based on the percentage of total transit time that has
been completed at the end of the applicable reporting period. Upon delivery of a shipment or related service, customers are billed according to the applicable payment terms.
Related services are a separate performance obligation and include accessorial charges such as terminal handling, storage, equipment rentals and customs brokerage.
Revenue is classified based on the line of business as the Company believes that best depicts the nature, timing and amount of revenue and cash flows. For all lines of
business, the Company records revenue on a gross basis as it is the principal in the transaction as the Company has discretion to determine the amount of consideration.
Additionally, the Company has the discretion to select drivers and other vendors for the services provided to customers. These factors, discretion in the amount of consideration
and the selection of drivers and other vendors, support revenue recognized on a gross basis.
Leases
The Company accounts for leases under Accounting Standards Codification 842, Leases, (“ASC 842”), where lessees are required to record an asset (right-of-use asset
or finance lease asset) and a lease liability. ASC 842 allows for two types of leases for recognition purposes: operating leases and finance leases. Operating leases result in the
recognition of a single lease expense on a straight-line basis over the lease term, while finance leases result in an accelerated expense. The Company determines if an
arrangement contains a lease at inception based on whether or not the Company has the right to control the asset during the contract period. All leases greater than 12 months
result in the recognition of a right-of-use asset and liability at the lease commencement date based on the present value of the lease payments over the lease term. The present
value of the lease payments is calculated using the applicable weighted-average discount rate. The weighted-average discount rate is based on the discount rate implicit in the
lease, or if the implicit rate is not readily determinable from the lease, then the Company estimates an applicable incremental borrowing rate. The incremental borrowing rate is
estimated based on the contractual lease term and the Company’s applicable borrowing rate.
Business Combinations
Upon the acquisition of a business, the fair value of the assets acquired and liabilities assumed are estimated, which may require judgment regarding the identification
of acquired assets and liabilities assumed. Once the acquired assets and assumed liabilities are identified, the fair value of the assets and liabilities are estimated using a variety
of approaches that require significant judgments. For intangible assets, significant judgments include, but are not limited to, future cash flows, selection of discount rates,
determination of terminal growth rates, and estimated useful life and pattern of use of the underlying intangible assets. For tangible assets, significant judgements include, but
are not limited to, current market values, physical and functional obsolescence of the assets, and remaining useful lives. Consideration is typically paid in the form of cash paid
upon closing while contingent consideration is paid upon the satisfaction of a future obligation. If contingent consideration is included as a component of the consideration, the
Company values the consideration as of the acquisition date.
F-16
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Income Taxes
Income taxes are accounted for under the asset and liability method. Deferred tax assets and liabilities are recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards.
Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date. Refer to Note
7, Income Taxes, for further discussion.
F-17
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Net Income (Loss) Per Common Share
Basic net income (loss) per common share is computed by dividing net income (loss) by the weighted-average number of common shares outstanding during each
period. Restricted shares have non-forfeitable rights to dividends and as a result, are considered participating securities for purposes of computing net income (loss) per common
share pursuant to the two-class method. Diluted net income (loss) per common share assumes the exercise of outstanding stock options and the vesting of performance share
awards using the treasury stock method when the effects of such assumptions are dilutive.
A reconciliation of net income attributable to Forward Air and weighted-average common shares outstanding for purposes of calculating basic and diluted net income
(loss) per share during the years ended December 31, 2023, 2022 and 2021 is as follows:
Numerator:
Net income and comprehensive income from continuing operations
Net income and comprehensive income from discontinued operations
Net income attributable to Forward Air
Income allocated to participating securities from continuing operations
Income allocated to participating securities from discontinued operations
Income allocated to participating securities
Numerator for basic and diluted net income per share for continuing operations
Numerator for basic and diluted net (loss) income per share for discontinued operations
Denominator:
Denominator for basic net income per share - weighted-average number of common shares outstanding
Dilutive stock options and performance share awards
Denominator for diluted net income per share - weighted-average number of common shares and common share
equivalents outstanding
Basic net income (loss) per share:
Continuing operations
Discontinued operations
Net income per basic share
Diluted net income (loss) per share:
Continuing operations
Discontinued operations
1
Net income per diluted share
1
Rounding may impact summation of amounts.
2023
2022
2021
42,803 $
124,548
167,351 $
179,414 $
13,777
193,191 $
(220)
(639)
(859)
(993)
(77)
(1,070)
106,879
(1,020)
105,859
(737)
—
(737)
42,583 $
178,421 $
123,909 $
13,700 $
106,142
(1,020)
25,913
90
26,003
26,783
143
26,926
1.64 $
4.78
6.42 $
1.64 $
4.77
6.40 $
6.66 $
0.51
7.17 $
6.63 $
0.51
7.14 $
27,155
137
27,292
3.91
(0.04)
3.87
3.89
(0.04)
3.85
$
$
$
$
$
$
$
$
F-18
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
The number of shares that were not included in the calculation of net income (loss) per diluted share because to do so would have been anti-dilutive for the years ended
December 31, 2023, 2022 and 2021 are as follows:
Anti-dilutive stock options
Anti-dilutive performance shares
Anti-dilutive restricted shares and deferred stock units
Total anti-dilutive shares
Share-Based Compensation
2023
2022
2021
112
18
67
197
57
13
2
72
—
—
—
—
The Company grants awards under the stock incentive plans to certain employees of the Company. The awards include stock options, restricted shares and
performance shares. The fair value of the stock options is estimated on the grant date using the Black-Scholes option pricing model, and share-based compensation expense is
recognized on a straight-line basis over the three-year vesting period. The fair value of the restricted shares is the quoted market value of the Company’s common stock on the
grant date, and the share-based compensation expense is recognized on a straight-line basis over the vesting period. For certain performance shares, the fair value is the quoted
market value of the Company’s common stock on the grant date less the present value of the expected dividends not received during the relevant period. For these performance
shares, the share-based compensation expense is recognized on a straight-line basis over the vesting period based on the projected assessment of the level of performance that
will be achieved. The fair value of other performance shares that have a financial target of the Company’s total shareholder return as compared to the total shareholder return of
a selected peer group, is estimated on the grant date using a Monte Carlo simulation model. The share-based compensation expense is recognized on a straight-line basis over
the vesting period. All share-based compensation expense is recognized in salaries, wages and employee benefits in the Consolidated Statements of Comprehensive
Income. Refer to Note 6, Stock Incentive Plan, for further discussion.
Ransomware Incident
In December 2020, the Company detected a ransomware incident impacting its operational and information technology systems, which caused service delays for many
of its customers (“Ransomware Incident”). Promptly upon its detection of the incident, the Company initiated response protocols, launched an investigation and engaged the
services of cybersecurity and forensics professionals. The Company also engaged with the appropriate law enforcement authorities. The Company continued to cooperate with
law enforcement in connection with the criminal investigation into those responsible for the Ransomware Incident.
For the year ended 2021 expenses related to the Ransomware Incident were $434, which were recorded in “Other operating expenses” in the Consolidated Statements
of Comprehensive Income. No expenses were incurred for the years ended December 31, 2023 and 2022. Expenses include costs to investigate and remediate the Ransomware
Incident and legal and other professional services related to the incident.
Recent Accounting Pronouncements
The Company has reviewed all recently issued, but not yet effective, accounting pronouncements and does not believe the future adoption of any such pronouncements
may be expected to cause a material impact on the financial condition or the results of operations of the Company.
F-19
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
2. Discontinued Operations and Held for Sale
Sale of Final Mile
On December 20, 2023, the Company completed the sale of the Final Mile business for estimated total cash consideration of $260,916. As a result, the assets and
liabilities of Final Mile have been presented separately under the captions “Current assets held for sale,” “Noncurrent assets held for sale,” “Current liabilities held for sale” and
“Noncurrent liabilities held for sale” in the Consolidated Balance Sheets as of December 31, 2022. The results of operations of Final Mile, as well as the gain realized on the
sale of $155,829, have been presented under the caption “Income from discontinued operations, net of tax” in the Consolidated Statements of Comprehensive Income for the
years ended December 31, 2023, 2022 and 2021.
Sale of Pool
As previously disclosed, on April 23, 2020, the Company made a decision to divest of Pool and the sale was completed on February 12, 2021. As a result, the results of
Pool were classified to “Loss from discontinued operations, net of tax” in the Consolidated Statements of Comprehensive Income for the year ended December 31, 2021.
Certain corporate overhead and other costs previously allocated to Pool for segment reporting purposes did not qualify for classification within discontinued operation and were
allocated to continuing operations. These costs were classified to the eliminations column in the segment reconciliation in Note 12, Segment Reporting.
On February 12, 2021, the Company completed the sale of the Pool business for $8,000 in cash and up to a $12,000 earn-out based on earnings before interest, taxes,
depreciation and amortization. The sale agreement for Pool included an earn-out based on the achievement of certain earnings before interest, taxes, depreciation and
amortization attainment over an eleven-month period, beginning February 1, 2021. The estimated fair value of the earn-out asset on the date of sale was $6,967. The fair value
was based on the estimated eleven-month period of the earnings before interest, taxes, depreciation and amortization and was calculated using a Monte Carlo simulation model.
Subsequent to the date of sale, the Company recognized any increases in the carrying value of the earn-out asset when the change was realized and evaluated the earn-
out asset for impairment at each reporting period. The financial performance of the Pool business significantly deteriorated during the third quarter of 2021. As a result, an
evaluation of the earn-out asset for impairment was completed, which included a review of revised forecasts, updated strategic operating decisions and current market
conditions. The revised forecasts indicated an impairment of the entire earn-out asset was necessary. A non-cash charge of $ 6,967 was recorded as an “Impairment charge” in
the summarized discontinued operation financial information for the year ended December 31, 2021.
Transition Services Agreement
On February 12, 2021, the Company entered into a Transition Services Agreement (“TSA”) with TOG FAS Holdings LLC, the buyer of the Pool business. Under the
TSA, the Company performed certain services on an interim basis in order to facilitate the orderly transition of the Pool business. The effective date of the TSA was February
12, 2021 and remained in effect until the date all services were completed, but no more than six months following the effective date. The TSA provided the right to extend the
term of the TSA with no limit on the number of the mutually agreed upon extensions. In exchange for the services performed by the Company under the TSA, the Company
received a monthly service charge. For the year ended December 31, 2021, the Company recognized $747, in “Other operating expenses” in the Consolidated Statements of
Comprehensive Income, for the services performed under the TSA. The TSA ended in October 2021 when all services were completed.
F-20
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Summarized Held for Sale and Discontinued Operation Financial Information
A summary of the carrying amounts of major classes of assets and liabilities, which are included in assets and liabilities held for sale in the Consolidated Balance Sheets, is as
follows:
December 31, 2022
Assets
Current assets:
Accounts receivable, less allowance of $29 in 2022
Prepaid expenses
Other current assets
Total current assets held for sale
Property and equipment, net of accumulated depreciation and amortization of $2,524
Operating lease right-of-use assets
Goodwill
Other acquired intangibles, net of accumulated amortization of $12,332 in 2022
Other assets
Total noncurrent assets held for sale
Liabilities
Current liabilities:
Accounts payable
Accrued expenses
Other current liabilities
Current portion of debt and finance lease obligations
Current portion of operating lease liabilities
Total current liabilities held for sale
Finance lease obligations, less current portion
Operating lease liabilities, less current portion
Total noncurrent liabilities held for sale
F-21
$
$
$
$
$
$
$
$
32,799
5
2,138
34,942
2,751
10,768
48,197
39,219
92
101,027
4,507
4,373
13
128
4,840
13,861
133
5,962
6,095
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
A summary of the results of operations classified as a discontinued operations, net of tax, in the Consolidated Statements of Comprehensive Income for the years ended
December 31, 2023, 2022 and 2021 is as follows:
Operating revenue
Operating expenses:
Purchased transportation
Salaries, wages and employee benefits
Operating leases
Depreciation and amortization
Insurance and claims
Fuel expense
Other operating expenses
Impairment charge
Total operating expenses
Income from discontinued operations
Gain (loss) on sale of business
Income from discontinued operations before income taxes
Income tax expense
Income (loss) from discontinued operations, net of tax
December 31, 2023
273,873
$
Year Ended
December 31, 2022
293,769
$
December 31, 2021
292,976
$
158,233
51,304
12,325
5,212
2,586
305
36,842
—
266,807
7,066
155,829
162,895
38,347
124,548
$
176,137
45,211
11,804
4,834
2,281
627
34,490
—
275,384
18,385
—
18,385
4,608
13,777
$
171,035
49,101
13,685
4,586
3,706
1,057
37,946
6,967
288,083
4,893
(2,860)
2,033
3,053
(1,020)
$
F-22
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
3. Acquisitions
Expedited Freight
In January 2023, the Company acquired certain assets of Land Air Express, Inc. (“Land Air”) for $56,567. Land Air, headquartered in Bowling Green, Kentucky,
offers a variety of less-than-truckload services including guaranteed, standard, exclusive, same day, hot shot and pickup and delivery, and operates in over 25 terminals across
the United States. The acquisition of Land Air is expected to accelerate the expansion of the Company’s national terminal footprint, particularly in the middle part of the United
States, and strategically position the Company to better meet the current and future needs of customers. The acquisition was funded using cash flow from operations and
proceeds from the Company’s credit facility. The results of Land Air have been included in the Company’s Consolidated Financial Statements as of and from the date of
acquisition. The associated goodwill has been included in the Company’s Expedited Freight reportable segment.
Intermodal
In May 2022, the Company acquired certain assets and liabilities of Edgmon Trucking, LLC (“Edgmon”) for $40,993 and a potential earn-out of up to $5,000, based
on the achievement of certain profit contribution milestones over a nineteen month period, beginning May 31, 2022. The estimated fair value of the earn-out liability on the date
of acquisition was immaterial. The fair value was based on the estimated certain profit contribution during the nineteen month period and was calculated using the option pricing
method. The nineteen month period ended on December 31, 2023 and the certain profit contribution milestones were not achieved during that period. Edgmon, headquartered in
Kent, Washington, operates a terminal in Kent and a yard in Seattle, servicing both the Port of Seattle and the Port of Tacoma. The acquisition of Edgmon marks the Company’s
first Intermodal location on the West Coast, a key area of expansion in the Intermodal strategic growth plan. The acquisition was funded using cash flows from operations. The
results of Edgmon have been included in the Company’s Consolidated Financial Statements as of and from the date of acquisition. The associated goodwill has been included in
the Company’s Intermodal reportable segment.
Acquisition of Omni Newco, LLC
On January 25, 2024, (the “Closing”) the Company completed the acquisition of Omni Newco, LLC (the "Omni Acquisition") pursuant to the Agreement and Plan of
Merger, dated as of August 10, 2023 (the “Merger Agreement”, and amended by Amendment No. 1, dated as of January 22, 2024, the “Amended Merger Agreement”). Omni,
headquartered in Dallas, Texas, is an asset-light, high-touch logistics and supply chain management company with 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 U.S.-based
customers operating both domestically and internationally. Pursuant to the Amended Merger Agreement, through a series of transactions involving the Company’s direct and
indirect subsidiaries (collectively, with the other transactions contemplated by the Amended Merger Agreement and the other Transaction Agreements referred to therein, the
“Transactions”), acquired Omni for a combination of (a) $20,000 in cash and (b) (i) common equity consideration representing 5,135 shares of the Company’s outstanding
common stock, par value $0.01 per share on an as-converted and as-exchanged basis (the “Common Equity Consideration”) and (ii) non-voting, convertible perpetual preferred
equity consideration representing, if the Company’s shareholders give the Conversion Approval (as defined below), an additional 8,880 shares of common stock on an as-
exchanged basis (the “Convertible Preferred Equity Consideration”). The Common Equity Consideration represents, as of the Closing and before any Conversion Approval,
approximately 16.5% of the Company’s common stock, on a fully diluted, as-exchanged basis. If the Company’s shareholders approve the conversion of the Convertible
Preferred Equity Consideration to Forward Common Stock in accordance with the listing rules of NASDAQ (the “Conversion Approval”), the Common Equity Consideration
and the Convertible Preferred Equity Consideration together will represent as of the Closing 35.0% of the Company’s common stock on a fully diluted and as-exchanged basis.
F-23
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Prior to the consummation of the Transactions, the Company completed a restructuring, pursuant to which, among other things, the Company contributed all of its
operating assets to Clue Opco LLC, a newly formed subsidiary of the Company (“Opco”). Opco has been structured as an umbrella partnership C corporation through which the
existing direct and certain indirect equityholders of Omni (“Omni Holders”), as of Closing, hold (i) a portion of the Common Equity Consideration in the form of units of Opco
designated as “Class B Units” (“Opco Class B Units”) and corresponding Series B Preferred Units (as defined below) 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, the Company operates
its business through Opco, which indirectly holds all of the assets and operations of the Company and Omni. Opco is governed by an amended and restated limited liability
company agreement of Opco that became effective at the Closing (“Opco LLCA”).
The portion of the transaction consideration paid to Omni Holders that is Common Equity Consideration consists of (a) shares of the Company’s common stock and
(b) Opco Class B Units and corresponding Series B Preferred Units that are exchangeable at the option of the holders thereof into shares of the Company’s common stock
pursuant to the Opco LLCA. The portion of the transaction consideration paid to Omni Holders that is Convertible Preferred Equity Consideration consists of (a) Series C
Preferred Units that will automatically convert into shares of the Company’s common stock upon the receipt of the Conversion Approval and (b) Opco Series C-2 Preferred
Units that will be economically equivalent to Series C Preferred Units and will automatically convert into Opco Class B Units and corresponding Series B Preferred Units upon
receipt of the Conversion Approval pursuant to the Opco LLCA. If the Conversion Approval is obtained, the Convertible Preferred Equity Consideration will convert into (i) the
Company’s common stock and (ii) Opco Class B Units and corresponding Series B Preferred Units.
In connection with the Transactions, the Company has agreed to use its reasonable best efforts to obtain the Conversion Approval at the first annual meeting of the
Company’s shareholders following the Closing. If the Company does not obtain the Conversion Approval at such annual meeting, then, so long as any Series C Preferred Units
remain outstanding, the Company has agreed to continue to use its reasonable best efforts to obtain the Conversion Approval at each annual meeting of shareholders thereafter
until the Conversion Approval is obtained.
At the Closing, the Company, Opco, Omni Holders and certain other parties entered into a tax receivable agreement (the “Tax Receivable Agreement”), which sets
forth the agreement among the parties regarding the sharing of certain tax benefits realized by the Company as a result of the Transactions. Pursuant to the Tax Receivable
Agreement, the Company is generally obligated to pay certain Omni Holders 83.5% of (a) the total tax benefit that the Company realizes as a result of increases in tax basis in
Opco’s assets resulting from certain actual or deemed distributions and the future exchange of units of Opco for shares of securities of the Company (or cash) pursuant to the
Opco LLCA, (b) certain pre-existing tax attributes of certain Omni Holders that are corporate entities for tax purposes, (c) the tax benefits that the Company realizes from
certain tax allocations that correspond to items of income or gain required to be recognized by certain Omni Holders, and (d) other tax benefits attributable to payments under
the Tax Receivable Agreement.
Series B Preferred Stock
Pursuant to Articles of Amendment to the Restated Charter of the Company filed with the Secretary of State of the State of Tennessee at the Closing (the “Charter
Amendment”), the Company established the terms of a new series of preferred stock of the Company designated as “Series B Preferred Stock” (the “Series B Preferred Stock”),
and, at the Closing, certain Omni Holders received fractional units (the “Series B Preferred Units”) each representing one one-thousandth of a share of the Company Series B
Preferred Stock. Each Series B Preferred Unit will, together with a corresponding Opco Class B Unit, be exchangeable at the option of the holder thereof into one share of the
Company’s common stock.
F-24
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Series C Preferred Stock
Pursuant to the Charter Amendment, the Company established the terms of a new series of convertible preferred stock of the Company designated as “Series C
Preferred Stock” (the “Series C Preferred Stock”), and, at Closing, certain Omni Holders received fractional units (each, a “Series C Preferred Unit”) each representing one one-
thousandth of a share of Series C Preferred Stock. The liquidation preference of Series C Preferred Unit is equal to $110.00 per unit, subject to adjustment for any in-kind
payment of the Annual Coupon as described below (the “Liquidation Preference”). In addition, the Series C Preferred Units accrue on each anniversary of issuance a cumulative
annual dividend (without any interim accrual) equal to the product of (a) a rate to be fixed at Closing (which equals the rate per annum equal to a spread of 3.50% above the
yield payable on the most junior tranche of debt issued in connection with the Transactions, rounded to the nearest 0.25%) multiplied by (b) the Liquidation Preference (the
“Annual Coupon”). The Annual Coupon will be paid, at the Company’s option, in cash or in-kind by automatically increasing the Liquidation Preference in an equal amount.
Senior Secured Notes
In order to finance a portion of the cash consideration payable for the Omni Acquisition and the costs and expenses incurred in connection with the transaction, GN
Bondco, LLC, a wholly owned subsidiary of Omni, (the “Escrow Issuer” and consolidated VIE) commenced a private offering of $725,000 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 closing of the Omni Acquisition, Opco assumed the
Escrow Issuer’s obligations under the Notes. The Notes bear interest at a rate of 9.5% per annum, payable semiannually in cash in arrears on April 15 and October 15 of each
year, commencing April 15, 2024. The Notes were issued at 98.0% of the face amount and will mature on October 15, 2031. Notes were issued pursuant to an indenture dated
as of October 2, 2023, between the Escrow Issuer and U.S. Bank Trust Company, National Association, as trustee and notes collateral agent.
The Notes are guaranteed on a senior secured basis in an aggregate principal amount in excess of $100,000. Prior to October 15, 2026, Opco may redeem some or all of
the Notes at any time and from time to time at a redemption price equal to 100.000% of the principal amount thereof plus the applicable “make-whole” premium, plus accrued
and unpaid interest, if any, to, but excluding, the redemption date. On or after October 15, 2026, Opco may redeem some or all of the Notes at the following prices (expressed
as a percentage of principal), plus in each case accrued and unpaid interest, if any, to, but excluding, the redemption date: (a) in the case of a redemption occurring during the
12-month period commencing October 15, 2026, at a redemption price of 104.750%; (b) in the case of a redemption occurring during the 12-month period commencing on
October 15, 2027, at a redemption price of 102.375%; and (c) in the case of a redemption occurring on or after October 15, 2028, at a redemption price of 100.000%. In
addition, at any time prior to October 15, 2026, Opco may redeem up to 40.000% of the original aggregate principal amount of the Notes in an amount not to exceed the amount
of net cash proceeds from one or more equity offerings at a redemption price equal to 109.5% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but
excluding, the redemption date. Upon the occurrence of a “change of control”, Opco will be required to offer to repurchase all of the outstanding principal amount of the Notes
at a purchase price of 101.000% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of repurchase.
Senior Secured Term Loan Facility
In order to finance a portion of the cash consideration payable for the Omni Acquisition and the costs and expenses incurred in connection with the transaction. GN
Loanco, LLC, a wholly owned subsidiary of Omni, (the “Escrow Loan Borrower” and consolidated VIE), entered into a credit agreement (the “Credit Agreement”) with
Citibank, N.A., as administrative agent and collateral agent and as initial term loan lender on December 19, 2023. Pursuant to the Credit Agreement, the Escrow Loan Borrower
obtained senior secured term B loans in an aggregate principal amount of $1,125,000 (the “New Term Loans”) and the ability to draw down up to $400,000 under a line of
credit (the “Revolving Credit Facility”).
The New Term Loans bear interest based, at Opco’s election, on (a) SOFR plus an applicable margin or (b) the base rate plus an applicable margin. The base rate is
equal to the highest of the following: (i) the prime rate; (ii) 0.50% above the overnight federal funds rate; and (iii) the one-month Term SOFR plus 1.00%. The applicable
margin for Term SOFR loans is 4.50% and the applicable margin for base rate loans is 3.50%. The New Term Loans are subject to customary amortization of 1.00% per year.
The New Term Loans were issued at 96.0% of the face amount and will mature on December 19, 2030.
F-25
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
No borrowings under the Revolving Credit Facility were made in connection with the Omni Acquisition. The Revolving Credit Facility will mature on January 25,
2029. Loans made under the Revolving Credit Facility bear interest based, at Opco’s election, on (a) SOFR plus an applicable margin or (b) the base rate plus an applicable
margin. Until delivery of a compliance certificate in respect of the fiscal quarter ending June 30, 2024, the applicable margin for SOFR loans is 4.25% and the applicable
margin for base rate loans is 3.25%. Thereafter, the applicable margin can range from 3.75% to 4.25% for SOFR loans and from 2.75% to 3.25% for base rate loans, in each
case depending on Opco’s first lien net leverage ratio, as set forth in the Credit Agreement. Upon closing of the Omni Acquisition, Opco assumed the Escrow Loan Borrower’s
obligations under the Credit Agreement, which were further secured by certain guarantors. Opco’s obligations under the Credit Agreement are guaranteed on a senior secured
basis by the Company and each of Opco’s existing and future domestic subsidiaries (subject to customary exceptions).
On February 12, 2024, Opco and the parties to the Credit Agreement entered into Amendment No. 2 (“Amendment No. 2”) to the Credit Agreement, which (a)
modifies the financial performance covenant in the Credit Agreement by temporarily increasing the 4.50:1.00 maximum consolidated first lien net leverage ratio permitted by
the covenant to (i) 6.00:1.00 (for the second and third quarters of 2024), (ii) 5.50:1.00 (for the fourth quarter of 2024), (iii) 5.25:1.00 (for the first quarter of 2025), (iv) 5.00:1.00
(for the second quarter of 2025) and (v) 4.75:1.00 (for the third quarter of 2025) and (b) reduces the revolving credit commitments available under the Credit Agreement from
an aggregate principal amount of $400,000 to an aggregate principal amount of $340,000. Amendment No. 2 also amends certain other terms of the Credit Agreement.
Prior to the effectiveness of Amendment No. 2, on February 12, 2024, Opco repaid $80,000 aggregate principal amount of the New Term Loans outstanding under the
Credit Agreement, together with all accrued and unpaid interest thereon.
Both the Notes and Revolving Facility contain covenants that, among other things, restrict the ability of the Company, without the approval of the required lenders, to
engage in certain mergers, consolidations, asset sales, dividends and stock repurchases, investments, and other transactions or to incur liens or indebtedness in excess of agreed
thresholds, as set forth in the credit agreement. The Revolving Credit Facility's terms also include a financial covenant which requires the Company to maintain a specific
leverage ratio. As of the date of this report, the Company was in compliance with these aforementioned covenants.
As of December 31, 2023, the Company consolidated the activities of GN Bondco, LLC (VIE) and GN Loanco, LLC (VIE) with the proceeds from the Notes and New
Term Loan recorded in “Noncurrent restricted cash equivalents” and the corresponding long-term debt recorded in “Long-term debt held in escrow” on the Consolidated
Balance Sheets. Pursuant to the Merger Agreement, the Company deposited the appropriate funds into escrow on behalf of GN Bondco, LLC and GN Loanco, LLC in
connection with the interest accrued through the Closing Date. For the interest funded but unpaid as of December 31, 2023, the corresponding amounts were recorded in
“Restricted cash equivalents” and “Accrued expenses” on the Consolidated Balance Sheets. Additionally, while held in escrow, the proceeds from the Notes and New Term
Loan were invested in a liquid, short-term instrument. The receivable for the interest earned through December 31, 2023 was recorded in “Restricted cash equivalents” and
“Other receivables” on the Consolidated Balance Sheets.
Due to the timing of the Closing, the Company is evaluating the impact of this acquisition on its consolidated financial statements. Therefore, the accounting for the
acquisition is incomplete and disclosures including the pro forma consolidated results and adjustments, amounts of major assets acquired and liabilities assumed, fair value of
the noncontrolling interest, valuation method used to determine the fair value of the consideration transferred, qualitative factors about the goodwill recognized, goodwill
expected to be deductible for tax purposes and the amount of goodwill by reportable segment are not yet available. Further disclosures regarding the impact of the acquisition
will be provided in subsequent filings as the evaluation is finalized.
Due Diligence, Transaction and Integration Costs
For the year ended December 31, 2023, the Company recorded $57,490 of due diligence and transactions costs incurred in connection with the acquisition of Omni.
The due diligence, transaction and integration costs were recorded in “Other operating expenses” in the Consolidated Statements of Comprehensive Income.
F-26
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Fair Value of Assets Acquired and Liabilities Assumed
Assets acquired and liabilities assumed as of the acquisition date are presented in the following table:
Tangible assets:
Accounts receivable
Property and equipment
Total tangible assets
Intangible assets:
Customer relationships
Non-compete agreements
Goodwill
Total intangible assets
Total assets acquired
Liabilities assumed:
Current liabilities
Total liabilities assumed
Net assets acquired
Edgmon
May 31, 2022
Land Air
January 31, 2023
$
$
$
4,963
613
5,576
13,051
172
22,195
35,418
40,994
1
1
40,993
$
—
738
738
35,200
—
20,629
55,829
56,567
—
—
56,567
The estimated useful life of acquired intangible assets as of the acquisition date are summarized in the following table:
Customer relationships
Non-compete agreements
Estimated Useful Lives
Edgmon
9 years
5 years
Land Air
15 years
—
F-27
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
4. Indebtedness
Long-term debt consisted of the following as of December 31, 2023 and 2022:
Credit facility, expires 2026
Debt issuance costs
Less: Current portion of long-term debt
Total long-term debt, less current portion
December 31, 2023
December 31, 2022
—
—
—
—
—
$
$
108,500
(418)
108,082
(1,494)
106,588
$
$
In September 2017, the Company entered into a five-year senior unsecured revolving credit facility (the “Facility”) with a maximum aggregate principal amount of
$150,000, with a sublimit of $30,000 for letters of credit and a sublimit of $30,000 for swing line loans. The maturity date of the Facility was September 29, 2022. In April
2020, the Company entered into the first amendment to the Facility, which increased the maximum aggregate principal amount to $225,000. The Facility could have been
increased by up to $25,000 to a maximum aggregate principal amount of $250,000 pursuant to the terms of the amended credit agreement, subject to the lenders’ agreement to
increase their commitments or the addition of new lenders extending such commitments. In July 2021, the Company entered into the second amendment to the Facility, which
extended the maturity date to July 20, 2026 and changed the interest rate options available under the Facility. In December 2021, the Company entered into the third amendment
to the Facility, which increased the amount available for borrowing under the Facility to $450,000, consisting of a $300,000 revolving line of credit and a term loan of $150,000.
In connection with the third amendment, the Company borrowed $150,000 under the term loan and simultaneously repaid $150,000 on the revolving line of credit from the
borrowings received. Under the third amendment, the Facility may be increased by up to $75,000 to a maximum aggregate principal amount of $525,000 pursuant to the terms
of the amended credit agreement, subject to the lenders’ agreement to increase their commitments or the addition of new lenders extending such commitments. Such increases to
the Facility may be in the form of additional revolving credit loans, term loans or a combination thereof, and are contingent upon there being no events of default under the
Facility. As of December 31, 2023 and December 31, 2022, the Company had $280,166 and $279,966 respectively, of available borrowing capacity under the Facility.
The Facility contains covenants that, among other things, restrict the ability of the Company, without the approval of the required lenders, to engage in certain mergers,
consolidations, asset sales, dividends and stock repurchases, investments, and other transactions or to incur liens or indebtedness in excess of agreed thresholds, as set forth in
the credit agreement. The Company also has to fulfill financial covenants with respect to a leverage ratio and an interest coverage ratio.
Under the amended Facility, interest accrues on the amounts outstanding under the Facility at the Company’s option, at either (1) Bloomberg Short-Term Bank Yield
Index rate (the “BSBY Rate”), which cannot be less than zero, plus a margin ranging from 1.25% to 1.75% based on the Company’s leverage ratio, or (2) the base rate, which
cannot be less than 2.00%. The base rate is the highest of (i) the federal funds rate, which cannot be less than zero, plus 0.50%, (ii) the administrative agent’s prime rate and (iii)
the BSBY Rate, which cannot be less than zero, plus 1.00%, plus a margin ranging from 0.00% to 0.50% based on the Company’s leverage ratio. Interest is payable in arrears
for each loan that is based on the BSBY rate on the last day of the interest period applicable to each loan, and interest is payable in arrears on loans not based on the BSBY rate
on the last day of each quarter. The interest rate on the borrowings outstanding under the credit facility was —% and 4.85% as of December 31, 2023 and December 31, 2022,
respectively.
Letters of Credit
The Company has an arrangement under the Facility to issue letters of credit, which guarantee the Company’s obligations for potential claims exposure for insurance
coverage. As of December 31, 2023 and December 31, 2022, outstanding letters of credit totaled $19,834 and $20,034, respectively.
F-28
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Interest Payments
Cash payments for interest were $11,923, $5,355 and $4,198 for the years ended December 31, 2023, 2022 and 2021 respectively. No interest was capitalized during
the year ended December 31, 2023, 2022 and 2021.
5. Shareholders’ Equity
Preferred Stock
There are 5,000 shares of preferred stock with a par value of $0.01 authorized, but no shares have been issued to date.
Cash Dividends
For each quarter of 2023 and 2022, the Board declared and the Company has paid a quarterly cash dividend of $0.24 per common share. For each quarter of 2021, the
Board declared and the Company paid a quarterly cash dividend of $0.21 per common share.
Share Repurchase Program
On February 5, 2019, the Board approved a stock repurchase plan authorizing the repurchase of up to 5,000 shares of the Company’s common stock (the “2019
Repurchase Plan”). The 2019 Repurchase Plan expires when the shares authorized for repurchase are exhausted or the 2019 Repurchase Plan is canceled.
During the year ended December 31, 2023, the Company repurchased through open market transactions 883 shares of common stock for $93,811, or an average of
$106.21 per share, and during the year ended December 31, 2022, the Company repurchased through open market transactions 600 shares of common stock for $62,771, or an
average of $104.53 per share. All shares received were retired upon receipt, and the excess of the purchase price over the par value per share was recorded to “Retained
Earnings” in the Consolidated Balance Sheets.
As of December 31, 2023, the remaining shares permitted to be repurchased under the 2019 Repurchase Plan were approximately 1,349 shares.
6. Stock Incentive Plan
Stock Incentive Plan
The Company recorded share-based compensation expense as follows for the years ended December 31, 2023, 2022 and 2021:
Salaries, wages and employee benefits - continuing operations
Salaries, wages and employee benefits - discontinued operation
Total share-based compensation expense
December 31,
2023
$
$
10,090
504
10,594
$
$
Year Ended
December 31,
2022
December 31,
2021
9,196
706
9,902
$
$
8,720
404
9,124
In May 2016, the Company adopted the 2016 Omnibus Incentive Compensation Plan (the “Omnibus Plan”) for the issuance of up to 2,000 common shares. As of
December 31, 2023, approximately 581 shares remain available for grant under the Omnibus Plan.
F-29
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Stock Options
Certain executives are eligible to receive grants of stock options. Employees may exercise the stock options at anytime after the grant is vested but no later than seven
years after the date of grant. Stock options vest over a three-year period from the date of grant. For stock option awards, under the Omnibus Plan, the exercise price is equal to
the price of the Company’s common stock on the date of grant. Share-based compensation expense associated with these awards is amortized ratably over the vesting period.
The Company estimated the fair value of the grants using the Black-Scholes option-pricing model.
The weighted average grant-date fair value of the stock option awards granted under the Omnibus Plan and the weighted average assumptions under the Black-Scholes
option-pricing model were as follows for the years ended December 31, 2023, 2022 and 2021.
Weighted average grant-date fair value
Weighted average assumptions under Black-Scholes option model:
Expected dividend yield
Expected stock price volatility
Risk-free interest rate
Expected life of awards (years)
December 31, 2023
39.75
$
December 31, 2022
28.91
$
December 31, 2021
18.36
$
0.8 %
32.5 %
3.8 %
5.6
0.9 %
28.7 %
1.9 %
5.6
1.1 %
28.9 %
0.6 %
5.8
Stock option transactions during the year ended December 31, 2023 on a continuing operations basis were as follows:
Outstanding as of January 1
Granted
Exercised
Forfeited or Canceled
Outstanding as of December 31
Number of Shares
376
54
—
(60)
370
Weighted
Average Exercise
Price
$
$
66.13
115.42
—
44.97
76.83
As of December 31, 2023, the weighted average remaining contractual life of stock options outstanding was approximately three years and exercisable was
approximately two years. The total fair value of stock options vested during 2023, 2022, 2021 was $—, $855, and $922, respectively. As of December 31, 2023, the total share-
based compensation expense related to unvested stock options not yet recognized was $2,148, and the weighted average period over which it is expected to be recognized is
approximately two years.
F-30
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
The following table sets forth the exercise price range, number of shares, weighted average exercise price and remaining contractual lives by groups of similar price on
a continuing operations basis as of December 31, 2023:
Range of Exercise
Prices
47.82 - $
64.26 - $
$
$
59.89
75.05
115.42
100.93 -
Number of Shares
Stock Options Outstanding
Weighted Average
Remaining Contractual Life
(in years)
Stock Options Exercisable
Weighted Average
Exercise Price
Exercisable as of
December 31, 2023
Weighted Average
Exercise Price
83
175
112
370
0.5
2.5
5.6
$
$
52.01
67.02
110.64
76.83
83
162
19
264
$
$
52.01
66.37
106.11
64.74
As of December 31, 2023, the total intrinsic value of both outstanding and exercisable stock options was $900. The total intrinsic value of stock options exercised
during 2023, 2022 and 2021 was $—, $142 and $2,137, respectively.
Stock option transactions during the year ended December 31, 2023 on a discontinued operation basis were as follows:
Outstanding as of January 1
Granted
Exercised
Forfeited or Canceled
Outstanding as of December 31
Restricted Shares
Number of Shares
—
1
—
(1)
—
Weighted Average
Exercise Price
$
$
—
115.42
—
115.42
—
The Company’s primary long-term incentive plan is a restricted share award plan that entitles employees to receive a share of the Company’s common stock subject to
vesting requirements based on continued employment. Shares granted under the restricted share award plan are restricted from sale or transfer until vesting, and the restrictions
lapse in three equal installments beginning one year after the date of grant. Dividends are paid in cash on a current basis throughout the vesting period. Share-based
compensation expense associated with these awards is amortized ratably over the requisite service period. All forfeitures are recognized as incurred.
Restricted share transactions on a continuing operations basis for the year ended December 31, 2023 were as follows:
Outstanding as of January 1
Granted
Vested
Forfeited
Outstanding as of December 31
F-31
Number of Shares
138
74
(70)
(9)
133
Weighted
Average Grant
Date Fair Value
87.81
$
114.46
81.32
104.68
104.87
$
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
The weighted average grant-date fair value of the restricted shares granted under the Omnibus Plan during the years ended December 31, 2023, 2022 and 2021 were
$114.46, $105.52 and $75.37, respectively. The total fair value of restricted shares that vested during 2023, 2022 and 2021 was $7,833, $9,246, and $8,232, respectively. As of
December 31, 2023, the total share-based compensation expense related to restricted shares not yet recognized was $8,207, and the weighted average period over which it is
expected to be recognized is approximately two years.
Restricted share transactions on a discontinued operation basis for the year ended December 31, 2023 were as follows:
Outstanding as of January 1
Granted
Vested
Forfeited
Outstanding as of December 31
Number of Shares
13
5
(6)
(12)
—
Weighted
Average Grant
Date Fair Value
87.96
$
115.42
82.07
103.38
—
$
The weighted average grant-date fair value of the restricted shares granted under the Omnibus Plan during the years ended December 31, 2023, 2022 and 2021 were
$115.42, $106.29 and $75.05, respectively. The total fair value of restricted shares that vested during 2023, 2022 and 2021 was $701, $558, and $619, respectively.
Performance Shares
Certain executives and key employees are eligible to receive grants of performance awards. The performance share agreement provides for awards based on achieving
certain financial targets, such as targets for earnings before interest, taxes, depreciation and amortization, and the Company’s total shareholder return as compared to the total
shareholder return of a selected peer group, as determined by the Board. Performance targets are set at the beginning of each three-year measurement period. The share awards
are earned over the vesting period, and the number of shares earned is determined based on the cumulative results for the measurement period. The performance agreement
provides for employees to earn 0% to 200% of the target awards depending on the actual performance achieved, with no shares earned if performance is below the established
minimum target. Performance shares do not receive dividends until the shares are vested. Awards earned are paid in shares of common stock of the Company at the end of the
vesting period. Share-based compensation expense associated with these awards is amortized ratably over the vesting period. Depending on the financial target, share-based
compensation expense is determined based on the projected assessment of the level of performance that will be achieved. All forfeitures are recognized as incurred.
The grant-date fair value of performance shares granted with a financial target based on the Company’s total shareholder return was estimated using a Monte Carlo
simulation model. The weighted average grant-date fair value of performance awards granted under the Omnibus Plan and the weighted average assumptions under the Monte
Carlo simulation model were as follows for the years ended December 31, 2023, 2022 and 2021:
Weighted average grant-date fair value
Weighted average assumptions under the Monte Carlo simulation model:
Expected stock price volatility
Weighted average risk-free interest rate
December 31, 2023
120.27
$
Year Ended
December 31, 2022
127.29
$
December 31, 2021
87.33
$
37.8 %
4.2 %
35.5 %
1.6 %
34.5 %
0.2 %
F-32
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Performance award transactions for the year ended December 31, 2023 on a continuing operations basis were as follows assuming target levels of performance:
Outstanding as of January 1
Granted
Additional shares awarded based on actual performance level achieved
Earned
Forfeited or unearned
Outstanding as of December 31
Number of Shares
Weighted
Average Grant
Date Fair Value
87.74
120.27
68.75
69.10
—
105.88
70 $
18
4
(31)
—
61 $
As of December 31, 2023, the total share-based compensation expense related to unearned performance awards not yet recognized, assuming the Company’s current
projected assessment of the level of performance will be achieved, was $2,434, and the weighted average period over which it is expected to be recognized is approximately two
years.
Total excess tax benefit realized for tax deductions in the United States related to the exercise of stock options, vesting of restricted stock and vesting of performance
awards under the Omnibus Plan was $2,518, $1,012, and $1,006 for the years ended December 31, 2023, 2022 and 2021, respectively.
Employee Stock Purchase Plan
Under the 2005 Employee Stock Purchase Plan (the “ESPP”), the Company is authorized to issue up to a remaining 302 shares of common stock to employees. These
shares may be issued at a price equal to 90% of the lesser of the market value on the first day or the last day of each six-month purchase period. Common stock purchases are
paid for through periodic payroll deductions and/or up to two lump sum contributions.
Employee stock purchase plan activity and related information was as follows on a continuing operations basis:
Shares purchased by participants under the ESPP
Average purchase price
1
Weighted average fair value of each purchase under the ESPP granted
Share-based compensation expense for ESPP
1
Equal to the discount from the market value of the common stock at the end of each six month purchase period
December 31, 2023
10
69.81
7.76
76
$
$
$
Employee stock purchase plan activity and related information was as follows on a discontinued operation basis:
Shares purchased by participants under the ESPP
Average purchase price
1
Weighted average fair value of each purchase under the ESPP granted
Share-based compensation expense for ESPP
1
Equal to the discount from the market value of the common stock at the end of each six month purchase period
December 31, 2023
1
69.81
7.76
13
$
$
$
F-33
Year Ended
December 31, 2022
8
82.48 $
9.17 $
78 $
$
$
$
December 31, 2021
11
75.71
30.68
344
Year Ended
December 31, 2022
1
82.48 $
9.17 $
9 $
$
$
$
December 31, 2021
1
75.71
30.68
25
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Director Restricted Shares
Under the Amended and Restated Non-Employee Director Stock Plan (the “Amended Plan”), approved in May 2007 and further amended in February 2013 and
January 2016, up to 360 common shares may be issued. As of December 31, 2023, approximately 47 shares remain available for grant under the Amended Plan.
Under the Amended Plan, each non-employee director receives an annual grant of restricted shares of the Company’s common stock. The restricted shares vest on the
earlier of (a) the day immediately prior to the first annual shareholder meeting that occurs after the grant date or (b) one year after the grant date. Each director may elect to
defer receipt of the common shares until the director departs from the Board. If a director elects to defer receipt, the Company will issue deferred stock units in which the
director does not have voting rights or other incidents of ownership until the shares are issued. Each deferred stock unit is eligible for a dividend equivalent in the form of
additional restricted stock units for each cash dividend paid by the Company.
F-34
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Director restricted share transactions for the year ended December 31, 2023 were as follows:
Outstanding as of January 1
Granted
Vested
Forfeited
Outstanding as of December 31
Number of Shares
15
15
(15)
(1)
14
Weighted
Average Grant
Date Fair Value
93.70
$
96.10
93.70
96.10
96.10
$
Share-based compensation expense for restricted shares
Excess tax benefit for the vesting of restricted shares
December 31, 2023
$
$
1,329
40
$
$
Year Ended
December 31, 2022
December 31, 2021
1,387
12
$
$
1,436
342
The total fair value of restricted shares that vested during 2023, 2022 and 2021 was $1,424, $1,436, and $2,514, respectively. As of December 31, 2023, the total share-
based compensation expense related to the restricted shares not yet recognized was $464, and the weighted average period over which it is expected to be recognized is less than
one year.
7. Income Taxes
The Company or one of its subsidiaries files income tax returns in the U.S. federal jurisdiction, various states and Canada. With a few exceptions, the Company is no
longer subject to U.S. federal, state and local, or Canadian examinations by tax authorities for years before 2016.
The provision for income taxes by location of the taxing jurisdiction for the years ended December 31, 2023, 2022 and 2021 consisted of the following:
Current:
Federal
State
Deferred:
Federal
State
2023
2022
2021
$
$
18,444 $
4,285
22,729
(6,268)
(2,625)
(8,893)
13,836 $
43,327 $
12,026
55,353
6,317
1,369
7,686
63,039 $
27,201
7,186
34,387
209
1,212
1,421
35,808
F-35
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
A reconciliation of income taxes computed at the U.S. federal statutory income tax rate (21.0% for 2023, 2022 and 2021) to the provision for income taxes reflected in
the Company’s Consolidated Statements of Comprehensive Income for the years ended December 31, 2023, 2022 and 2021 is as follows:
Tax expense at the statutory rate
State income taxes, net of federal income tax benefit
Share-based compensation
Other permanent differences
Non-deductible compensation
Change in income tax contingency reserves
Federal income tax credits
Other
2023
2022
2021
$
$
11,894 $
1,561
(537)
(36)
1,190
—
(34)
(202)
13,836 $
50,915 $
10,189
(840)
(30)
1,435
—
(107)
1,477
63,039 $
29,964
6,910
(933)
31
293
(260)
(76)
(121)
35,808
The significant components of the deferred tax assets and liabilities at December 31, 2023 and 2022 were as follows:
Deferred tax assets:
Accrued expenses
Allowance for doubtful accounts
Operating lease liabilities
Due diligence and transaction costs
Share-based compensation
Accruals for income tax contingencies
Capital loss carryforwards
Net operating loss carryforwards
Total gross deferred tax assets
Valuation allowance
Total net deferred tax assets
Deferred tax liabilities:
Tax over book depreciation
Prepaid expenses
Operating lease right-of-use assets
Goodwill
Intangible assets
Total deferred tax liabilities
Net deferred tax liabilities
December 31,
2023
December 31,
2022
$
$
12,006 $
565
29,658
13,953
4,995
129
—
634
61,940
(395)
61,545
33,373
10,807
28,559
23,744
7,262
103,745
(42,200) $
13,743
822
37,599
—
4,458
141
4,253
645
61,661
(4,648)
57,013
32,888
6,600
36,600
23,681
8,337
108,106
(51,093)
The Company paid income taxes, net of refunds, of $20,842, $65,388 and $35,766 for the years ended December 31, 2023, 2022 and 2021, respectively.
F-36
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
In 2021, the sale of Pool resulted in a capital loss in the amount of $4,253, which expires in 2026. A valuation allowance of $4,253 was recorded against the capital
loss carryforward as of both December 31, 2022 and 2021. As of each reporting date, the Company considers new evidence, both positive and negative, that could affect the
future realization of its deferred tax assets. As of December 31, 2023, the Company determined that there is sufficient evidence based on the capital gain realized from the sale
of Final Mile to conclude that it is more likely than not that the capital loss carryforward of $4,253 is realizable. As a result, the Company realized a valuation allowance benefit
in 2023, which was allocated to “Income from discontinued operations, net of tax.” Therefore, the change in the valuation allowance recorded against the capital loss
carryforward for the years ended December 31 2023, 2022 and 2021 was ($4,253), $23 and $4,230, respectively.
As of December 31, 2023, 2022 and 2021 the Company had state net operating loss carryforwards of $13,240, $13,574 and $13,819, respectively, that expire between
2023 and 2034. The state net operating loss carryforwards are limited to the future taxable income of separate legal entities. The Company maintains a valuation allowance to
reserve against its state net operating loss carryforwards of $395 as of both December 31, 2023 and 2022. There was no change in the valuation allowance for the state net
operating loss carryforwards in 2023, 2022 and 2021. A valuation allowance is established when it is more likely than not that some portion or all of the deferred tax assets will
not be realized. The Company assessed the likelihood that its deferred tax assets would be recovered from estimated future taxable income and available tax planning
strategies. In making this assessment, all available evidence was considered including economic climate, as well as reasonable tax planning strategies. The Company believes it
is more likely than not that it will realize its remaining net deferred tax assets, net of the valuation allowance, in future years.
A reconciliation of the beginning and ending amount of unrecognized tax benefits as of and during the years ended December 31, 2023 and 2022 is as follows:
Balance at December 31, 2021
Reductions for settlement with state taxing authorities
Additions for tax positions of current year
Balance at December 31, 2022
Reductions for settlement with state taxing authorities
Additions for tax positions of current year
Balance at December 31, 2023
$
$
241
(66)
23
198
(66)
21
153
The Company recognizes income tax benefits from uncertain tax positions where the realization of the ultimate benefit is uncertain. As of December 31, 2023 and
2022, the Company had $153 and $198, respectively, of unrecognized income tax benefits, all of which would affect the Company’s effective tax rate if recognized. At
December 31, 2023 and 2022, the Company had accrued interest and penalties related to unrecognized tax benefits of $82 and $85, respectively. The Company recognizes
interest and penalties, if any, related to unrecognized tax benefits in “Interest expense, net” and “Other operating expenses”, respectively.
8. Leases
The Company leases certain land, buildings, equipment and office equipment under finance and operating leases. Equipment includes tractors, straight trucks, forklifts
and trailers. Equipment under a finance lease is amortized over the shorter of the lease term or its estimated useful life.
The Company subleases certain facilities to independent third parties. Since the Company is not relieved of its obligation under these leases, a right-of-use lease asset
and corresponding operating lease liability is recorded. Sublease rental income was $2,991, $2,762 and $1,763 in 2023, 2022 and 2021, respectively. In 2024, the Company
expects to receive aggregate future minimum rental payments under noncancelable subleases of approximately $1,859. Noncancelable subleases expire between 2024 and 2028.
F-37
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
The Company does not recognize a right-of-use asset or lease liability with respect to operating leases with an initial lease term of 12 months or less, and recognizes
expense on such leases on a straight-line basis over the lease term. The Company does not account for lease components separately from nonlease components. The Company
has certain leases that include one or more options to renew, with renewal periods ranging from one to 25 years. The exercise of the lease renewal options is at the discretion of
the Company and is included in the determination of the right-of-use asset and operating lease liability when the option is reasonably certain of being exercised. The depreciable
life of right-of-use assets and leasehold improvements is limited by the expected lease term. The Company has certain lease agreements for equipment that include variable
rental payments based on estimated mileage. The variable rental payments are adjusted for periodically based on actual mileage. In addition, the Company has certain lease
agreements that include variable rental payments that are adjusted periodically for inflation based on the index rate as defined by the applicable government authority. The
Company’s leases generally do not provide an implicit rate, and therefore, the Company applies its incremental borrowing rate using information available at lease
commencement or modification to determine the present value of lease payments. The incremental borrowing rate is an estimate based on the interest rate the Company would
pay to borrow an amount equal to the lease payments on a collateralized basis and over a similar term, within a similar economic environment. The Company’s lease agreements
do not contain any residual value guarantees or restrictive covenants.
The Company has contracts with Leased Capacity Providers. Since the contracts explicitly identify the tractors operated by the Leased Capacity Providers, the
Company determined the contracts contain an embedded lease. The compensation of Leased Capacity Providers, as specified in the contract, is variable based upon a rate per
shipment and a rate per mile. The variable amounts are excluded from the calculation of the right-of-use lease asset and corresponding operating lease liability and are disclosed
as variable lease costs. Variable lease costs related to the embedded leases were $409,080, $440,756 and $353,347, for the years ended December 31, 2023, 2022, and 2021,
respectively, and were recorded in “Purchased transportation” in the Consolidated Statements of Comprehensive Income.
Total lease assets and liabilities as of December 31, 2023 and 2022 were as follows:
Lease Assets
Operating lease right-of-use assets
Finance lease assets
Total leased assets
Classification
Operating lease right-of-use assets
Property and equipment, net
1
December 31, 2023
111,552
38,015
149,567
$
$
December 31, 2022
131,097
22,957
154,054
$
$
Lease Liabilities
Current:
Operating
Finance
Noncurrent:
Operating
Finance
Total leased liabilities
Classification
December 31, 2023
December 31, 2022
Current portion of operating lease liabilities
Current portion of debt and finance lease obligations
Operating lease liabilities, less current portion
Finance lease obligations, less current portion
$
$
44,344
12,645
$
71,598
26,736
155,323
$
42,266
7,820
92,903
15,711
158,700
1
Finance lease assets are recorded net of accumulated depreciation of $ 22,051 and $ 10,949 as of December 31, 2023 and 2022, respectively.
F-38
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Total lease cost for 2023 and 2022 was as follows:
Operating lease cost
Short-term lease cost
Variable lease cost
Sublease income
Finance lease cost:
Amortization of leased assets
Interest on leased liabilities
Total lease cost
Classification
Operating leases
Operating leases
Purchased transportation, operating leases and other operating
expenses
Operating revenue
Depreciation and amortization
Interest expense, net
Year Ended
December 31,
2023
December 31,
2022
$
$
54,604
13,672
$
428,385
(2,991)
11,102
1,395
506,167
$
52,891
20,329
456,093
(2,762)
6,114
563
533,228
Future minimum lease payments under noncancelable operating and finance leases with remaining terms greater than one year as of December 31, 2023 were as
follows:
2024
2025
2026
2027
2028
Thereafter
Total minimum lease payments
Less: imputed interest
Present value of future minimum lease payments
Less: current portion of lease obligations
Long-term lease obligations
The following table summarizes the weighted-average remaining lease term and weighted average discount rate:
Weighted average remaining lease term (in years):
Operating leases
Finance leases
Weighted average discount rate:
Operating leases
Finance leases
F-39
Operating Leases
Finance Leases
49,036 $
34,347
23,186
12,386
5,854
6,660
131,469
(15,527)
115,942
(44,344)
71,598 $
14,455
11,190
9,012
6,777
2,123
192
43,749
(4,368)
39,381
(12,645)
26,736
$
$
December 31, 2023
December 31, 2022
3.0
3.6
3.4 %
5.5 %
3.6
3.6
3.0 %
4.2 %
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
The following table summarizes the supplemental cash flow information for 2023 and 2022:
Cash paid for amounts included in the measurement of lease liabilities:
Operating cash flows from operating leases
Operating cash flows from finance leases
Financing cash flows from finance leases
Right-of-use assets obtained in exchange for operating lease liabilities
Leased assets obtained in exchange for finance lease obligations
9. Commitments and Contingencies
Commitments
Year Ended
December 31, 2023
December 31, 2022
$
$
54,462
1,395
11,074
29,884
25,217
$
$
51,780
563
6,108
47,721
14,422
As of December 31, 2023, the Company had unconditional purchase obligations of $7,100 to purchase forklifts and other equipment during 2024.
Contingencies
On September 26, 2023, Rodney Bell, Michael A. Roberts and Theresa Woods, three shareholders of the Company, filed a complaint (the “Shareholder Complaint”)
against the Company and certain of its directors and officers in the Third District Chancery Court sitting in Greeneville, Tennessee. The Shareholder Complaint alleges, among
other things, that the Company’s 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. The court initially granted a temporary restraining order enjoining the transactions contemplated by the
Merger Agreement but later dissolved it on October 25, 2023. Thereafter and as described below, on January 25, 2024, the parties to the Amended Merger Agreement
completed the Omni Acquisition. The case remains pending.
On October 31, 2023, Omni filed a complaint (the “Omni Complaint”) against the Company and certain of its direct and indirect subsidiaries in the Court of Chancery
in the State of Delaware. The Omni Complaint alleged, among other things, that the Company breached its obligation to close the transactions contemplated by the Merger
Agreement and sought specific performance to compel the Company to close and related declaratory relief. On January 22, 2024, the Company, Omni, and certain other parties
entered into a Settlement and Release Agreement (the “Settlement Agreement”), settling all litigation claims that were the subject of proceedings pending in the matter of Omni
Newco, LLC v Forward Air Corporation, et al, No. 2023-1104 (Del. Ch.) (the “Transaction Litigation”) asserted under the Merger Agreement among the Company, Omni and
the other parties thereto, and stipulating to the dismissal of the Transaction Litigation. Pursuant to the Settlement Agreement, the parties agreed to enter into Amendment No. 1.
On January 25, 2024, the Company, Omni, and certain other parties completed the Omni Acquisition as discussed in Note 3, Acquisitions.
The Company is party to various legal claims and actions incidental to its business, including claims related to vehicle liability, workers’ compensation, property
damage and employee medical benefits. The Company accrues for the uninsured portion of contingent losses from these and other pending claims when it is both probable that a
liability has been incurred and the amount of loss can be reasonably estimated. Based on the knowledge of the facts, the Company believes the resolution of such incidental
claims and pending litigation, taking into account existing reserves, will not have a material adverse effect on our consolidated financial statements. Moreover, the results of
complex legal proceedings are difficult to predict, and the Company’s view of these matters may change in the future as the litigation and related events unfold.
Insurance coverage provides the Company with primary and excess coverage for claims related to vehicle liability, workers’ compensation, property damage and
employee medical benefits.
F-40
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
For vehicle liability, the Company retains a portion of the risk. Below is a summary of the Company’s risk retention on vehicle liability insurance coverage maintained
by the Company up to $10,000 (in thousands):
Expedited Freight
Company
Risk Retention
Frequency
Layer
Policy Term
LTL business $
Truckload business $
5,000 Occurrence/Accident¹
5,000 Occurrence/Accident¹
$0 to $5,000
$0 to $5,000
10/1/2023 to 10/1/2024
10/1/2023 to 10/1/2024
LTL, Truckload and Intermodal
businesses $
5,000 Policy Term Aggregate²
$5,000 to $10,000
10/1/2023 to 10/1/2024
Intermodal
¹ For each and every accident/incident, the Company is responsible for damages and defense up to these amounts, regardless of the number of claims associated with any accident/incident.
² During the Policy Term, the Company is responsible for damages and defense within the stated Layer up to the stated, aggregate amount of Company Risk Retention before insurance will contribute.
1,000 Occurrence/Accident¹
10/1/2023 to 10/1/2024
$0 to $1,000
$
Also, from time to time, when brokering freight, the Company may face claims for the “negligent selection” of outside, contracted carriers that are involved in
accidents, and the Company maintains third-party liability insurance coverage with a $100 deductible per occurrence for its brokered services. Additionally, the Company
maintains workers’ compensation insurance with a self-insured retention of $500 per occurrence.
Insurance coverage in excess of the self-insured retention limit is an important part of the Company’s risk management process. The Company accrues for the costs of
the uninsured portion of pending claims within the self-insured retention based on the nature and severity of individual claims and historical claims development trends. The
Company believes the recorded reserves are sufficient for all incurred claims up to the self-insured retention limits, including an estimate for claims incurred but not reported.
However, estimating the number and severity of claims, as well as related judgment or settlement amounts is inherently difficult, and the Company may fail to establish
sufficient insurance reserves and adequately estimate for future insurance claims. Since the ultimate resolution of outstanding claims as well as claims incurred but not reported
is uncertain, it is possible that the reserves recorded for these losses could change materially in the near term.
10. Employee Benefit Plan
The Company sponsors a qualified defined contribution plan covering substantially all employees. Under the defined contribution plan, the Company contributes
25.0% of the employee’s contribution up to a maximum of 6.0% of annual compensation, subject to certain limits. The Company contributed $2,001, $1,952 and $1,762 for the
years ended December 31, 2023, 2022 and 2021, respectively.
11. Fair Value of Financial Instruments
Cash, cash equivalents and restricted cash equivalents, accounts receivable, other receivables, and accounts payable are valued at their carrying amounts in the
Company’s Consolidated Balance Sheets, due to the immediate or short-term maturity of these financial instruments.
As of December 31, 2023, the estimated fair value of the Company’s finance lease obligation, based on current borrowing rates, was $38,926, compared to its carrying
value of $39,381. As of December 31, 2022, the estimated fair value of the Company’s finance lease obligation, based on current borrowing rates, was $22,957, compared to its
carrying value of $23,531.
The carrying value of the long-term debt held in escrow approximates fair value based on the borrowing rates currently available for a loan with similar terms and
average maturity.
F-41
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
In addition to assets and liabilities that are recorded at fair value on a recurring basis, the Company records assets and liabilities at fair value on a nonrecurring basis.
Assets are recorded at fair value on a nonrecurring basis as a result of an impairment charge. The losses on assets measured at fair value on a nonrecurring, discontinued
operation basis are summarized below:
Earn-out asset impairment charge
1
1
See Note 2, Discontinued Operations and Held for Sale .
12. Segment Reporting
2023
2022
2021
$
—
$
—
$
6,967
The Company has two reportable segments: Expedited Freight and Intermodal. The Company evaluates segment performance based on income from operations.
Segment results include intersegment revenues and shared costs. Costs related to the corporate headquarters, shared services and shared assets, such as trailers, are allocated to
each segment based on usage. Shared assets are not allocated to each segment, but rather the shared assets, such as trailers, are allocated to the Expedited Freight reportable
segment. Corporate includes revenues and expenses as well as assets that are not attributable to any of the Company’s reportable segments. The Company is currently
evaluating potential changes to its reportable segments, which may be reflected in future filings to more accurately align businesses within the segments.
The accounting policies applied to each segment are the same as those in Note 1, Operations and Summary of Significant Accounting Policies, except for certain self-
insurance loss reserves related to vehicle liability and workers’ compensation. Each segment is allocated an insurance premium and deductible that corresponds to the self-
insured retention limit for that particular segment. Any self-insurance loss exposure beyond the deductible allocated to each segment is recorded in Corporate.
No single customer accounted for more than 10% of the Company’s consolidated revenues from continuing operations for the years ended December 31, 2023, 2022
and 2021.
F-42
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
Segment results from operations for the years ended December 31, 2023, 2022 and 2021 were as follows:
Year Ended December 31, 2023
External revenues
Intersegment revenues
Depreciation
Amortization
Income (loss) from continuing operations
Purchases of property and equipment
Year Ended December 31, 2022
External revenues
Intersegment revenues
Depreciation
Amortization
Income (loss) from continuing operations
Purchases of property and equipment
Year Ended December 31, 2021
External revenues
Intersegment revenues
Depreciation
Amortization
Income (loss) from continuing operations
Purchases of property and equipment
Total Assets
As of December 31, 2023
As of December 31, 2022
Expedited Freight
$
1,096,484 $
474
31,626
5,788
116,040
29,928
Expedited Freight
$
1,260,414 $
(293)
23,597
3,461
192,583
37,984
Expedited
Freight
$
1,098,847 $
223
20,826
3,430
127,045
35,630
Intermodal
Corporate
Eliminations
273,925 $
118
9,740
10,251
25,327
797
— $
—
—
—
(53,157)
—
—
(266)
—
—
—
—
Intermodal
Corporate
Eliminations
419,698 $
20
6,641
8,752
56,874
1,270
— $
—
101
—
(1,866)
—
—
(205)
—
—
—
—
Intermodal
Corporate
Eliminations
$
$
Consolidated -
Continuing
Operations
1,370,409
326
41,366
16,039
88,210
30,725
Consolidated -
Continuing
Operations
1,680,112
(478)
30,339
12,213
247,591
39,254
Consolidated -
Continuing
Operations
289,171 $
43
3,538
7,109
30,117
2,745
— $
—
63
—
(10,137)
—
— $
(1,057)
—
—
—
—
1,388,018
(791)
24,427
10,539
147,025
38,375
$
661,270 $
547,417
270,421 $
322,001
2,047,901 $
202,756
(59) $
(67)
2,979,533
1,072,107
F-43
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
A reconciliation from the segment information to the consolidated balances for revenues and total assets is set forth below:
Intersegment revenues - continuing operations
Intersegment revenues - discontinued operations
Consolidated intersegment revenues
Segment assets - continuing operations
Current assets held for sale
Noncurrent assets held for sale
Consolidated total assets
December 31,
2023
Year Ended
December 31,
2022
December 31,
2021
$
$
326
(326)
—
$
$
(478)
478
—
$
$
(791)
791
—
December 31,
2023
December 31,
2022
$
$
2,979,533
—
—
2,979,533
$
$
1,072,107
34,942
101,027
1,208,076
Revenue from the individual services within the Expedited Freight segment for the years ended December 31, 2023, 2022 and 2021 were as follows:
Expedited Freight revenues:
Network
Truckload
Other
Total
December 31, 2023
Year Ended
December 31, 2022
December 31, 2021
$
$
845,949
159,513
91,496
1,096,958
$
$
947,817
221,979
90,325
1,260,121
$
$
805,015
223,026
71,029
1,099,070
F-44
Forward Air Corporation
Notes to Consolidated Financial Statements (Continued)
December 31, 2023
(In thousands, except per share data)
13. Quarterly Results of Operations (Unaudited)
The following is a summary of the quarterly results of operations for the years ended December 31, 2023 and 2022:
Operating revenue
Net income (loss) from continuing operations
Income from discontinued operations, net of tax
Net income and comprehensive income
Basic net income (loss) per share:
Continuing operations
Discontinued operations
1
Net income per share
Diluted net income (loss) per share:
Continuing operations
Discontinued operations
1
Net income per share
Operating revenue
Net income from continuing operations
Income from discontinued operations, net of tax
Net income and comprehensive income
Basic net income per share:
Continuing operations
Discontinued operations
1
Net income per share
Diluted net income per share:
Continuing operations
Discontinued operations
1
Net income per share
1
Rounding may impact summation of amounts.
March 31
June 30
September 30
December 31
2023
$
$
$
$
$
$
$
$
$
$
$
$
$
$
357,709
33,904
2,464
36,368
1.28
0.09
1.37
1.27
0.09
1.37
March 31
401,203
40,463
2,223
42,686
1.49
0.08
1.57
1.48
0.08
1.57
$
$
$
$
$
$
$
$
$
$
$
$
$
$
333,622
17,127
2,824
19,951
0.66
0.11
0.76
0.65
0.11
0.76
$
$
$
$
$
$
$
340,976
6,493
2,795
9,288
0.25
0.11
0.36
0.25
0.11
0.36
2022
June 30
September 30
442,191
51,434
3,996
55,430
1.90
0.15
2.05
1.89
0.15
2.04
$
$
$
$
$
$
$
433,201
48,508
3,625
52,133
1.80
0.13
1.94
1.80
0.13
1.93
$
$
$
$
$
$
$
$
$
$
$
$
$
$
338,428
(14,721)
116,465
101,744
(0.58)
4.51
3.94
(0.58)
4.51
3.93
December 31
403,039
39,009
3,933
42,942
1.46
0.15
1.61
1.45
0.15
1.60
F-45
Year ended December 31, 2023
Allowance for doubtful accounts
1
Allowance for revenue adjustments
Deferred tax valuation allowance
Year ended December 31, 2022
Allowance for doubtful accounts
1
Allowance for revenue adjustments
Deferred tax valuation allowance
Year ended December 31, 2021
Allowance for doubtful accounts
1
Allowance for revenue adjustments
Deferred tax valuation allowance
Forward Air Corporation
Schedule II — Valuation and Qualifying Accounts
(In thousands)
Additions
Balance at
Beginning
of Period
Charged to
Costs and
Expenses
Charged to
Other Operating
Revenue
Deductions
Balance at
End of
Period
$
$
$
$
$
$
1,499
1,630
4,648
7,777
1,707
1,526
4,625
7,858
1,246
1,005
395
2,646
21 $
—
(4,253)
(4,232)
(46) $
—
23
(23)
776 $
—
4,230
5,006
— $
5,091
—
5,091
— $
6,426
—
6,426
— $
6,339
—
6,339
$
$
$
2
3
2
3
2
3
396
5,639
—
6,035
162
6,322
—
6,484
315
5,818
—
6,133
1,124
1,082
395
2,601
1,499
1,630
4,648
7,777
1,707
1,526
4,625
7,858
1
2
3
Represents an allowance for revenue adjustments resulting from future billing rate changes.
Represents uncollectible accounts written off, net of recoveries.
Represents adjustments to billed accounts receivable.
S-1
Exhibit 4.2
DESCRIPTION OF FORWARD AIR’S SECURITIES REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
Description of Capital Stock
The following description sets forth certain material terms and provisions Forward Air Corporation’s securities that are registered under Section 12 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). As of the date of the Annual Report on Form 10-K of which this exhibit is a part, Forward Air Corporation (the
“Company”) has one class of securities registered under Section 12 of the Exchange Act: Forward Air, Inc.’s common stock, par value $0.01 per share.
General
The following description summarizes the rights of holders of the Company’s capital stock. Because it is only a summary, it does not contain all the information that
may be important to you. For a complete description of the matters set forth in this “Description of Capital Stock,” you should refer to our Restated Charter (the “Restated
Charter”) and Amended and Restated Bylaws, (“Amended and Restated Bylaws”), which are included, or incorporated by reference, as exhibits to our Annual Report on Form
10-K, and to the applicable provisions of Tennessee law. Our authorized capital stock consists of 55,000,000 shares, of which 50,000,000 shares are designated common stock,
$0.01 par value and 5,000,000 shares are designated preferred stock, $0.01 par value. As of December 31, 2022, 26,461,293 shares of our common stock were outstanding. We
had no outstanding preferred stock. Our common stock is listed on the Nasdaq Stock Market LLC under the symbol “FWRD.”
Description of Common Stock
Rights Related to Dividends and Distributions
Subject to preferences that may apply to any shares of preferred stock that are outstanding at the time, the holders of our common stock are entitled to receive, to the extent
permitted by law and to the extent the Board of Directors shall determine, such dividends as may be declared from time to time by the Board of Directors. Further, subject to
preferences that may apply to any shares of preferred stock that are outstanding at the time, in the event of the voluntary or involuntary liquidation, dissolution or winding-up of
the Company, the holders of the common stock shall be entitled to receive such of the remaining assets of the Company of whatever kind available for distribution to the extent
the Board of Directors shall determine.
Voting Rights
Except as may be otherwise required by law or by the Restated Charter, each holder of common stock has one vote in respect of each share of such stock held by such
shareholder on all matters voted upon by the shareholders.
Preemptive Rights
No holder of our common stock has any preferential or preemptive right to subscribe for, purchase or receive any shares of stock of the Company of any class, now or
hereafter authorized, or any options or warrants for such shares, or any rights to subscribe to or purchase such shares, or any securities convertible into or exchangeable for such
shares, which may at any time or from time to time be issued, sold or offered for sale by the Company.
Description of Preferred Stock
Shares of our preferred stock may be divided and issued in one or more series at such time or times and for such consideration as the Board of Directors may
determine, all shares of any one series is of equal rank and identical in all respects. The Board of Directors may determine the powers, preferences, and rights of the shares of
such series, and the qualifications, limitations or restrictions, thereof, to the full extent permitted by the laws of the State of Tennessee, which might include some or all of:
•
•
•
•
•
•
the rate of dividends, if any, and whether such dividends shall be noncumulative, cumulative to the extent earned, or cumulative and, if cumulative, from which
date or dates;
whether the shares will be redeemable and, if so, the terms and conditions of such redemption;
whether there shall be a sinking fund for the redemption;
the rights to which the holders of the shares shall be entitled in the event of voluntary or involuntary liquidation, dissolution or winding-up of the Company, and
the priority of payment of shares in any such event;
whether the shares shall be convertible into or exchangeable for shares of any other class or any other series and the terms thereof; and
all other preferences of any series of preferred stock in the same manner as provided for in the issuance of preferred stock, so long as no shares of such series
are outstanding at such time.
The shares of preferred stock will have no voting power or voting rights with respect to any matter whatsoever, except as may be otherwise required by law or may be
provided in any amendment to our Restated Charter creating the series of which such shares are a part. The Board of Directors is authorized to make any change in the
designations, terms, limitations or relative rights or preferences of any series of preferred stock in the same manner as provided for in the issuance of preferred stock, so long as
no shares of such series are outstanding at such time.
Election of Directors
Our Amended and Restated Bylaws, provide that each member of our board of directors is elected annually to a one year term and shall hold office until the next annual
meeting of shareholders and until such person’s successor is elected and qualified.
Our Amended and Restated Bylaws also provide that the number of directors may be increased or decreased by action of the board of directors or shareholders. Vacancies
on the board of directors may be filled by vote of the board of directors. The overall effect of these provisions may be to prevent a person or entity from seeking to acquire
control of us through an increase in the number of directors on our board of directors and the election of designated nominees to fill newly created vacancies.
Anti-Takeover Effects of our Restated Charter and Amended and Restated Bylaws
Our Restated Charter and Amended and Restated Bylaws have provisions that could have the effect of making it more difficult for somebody who wanted to take
control of us to do so. They include:
Advance Notice Requirements. A requirement that shareholders give advance notice of their intention to nominate candidates for election as directors (and produce the
required information as set forth in our Amended and Restated Bylaws) or to bring other business before a meeting of shareholders.
Limit on Shareholder Ability to Nominate Candidates for Election as Directors or Call a Special Meeting of Shareholders. In order to be able to nominate a candidate
for election or re-election to our Board of Directors or call a special meeting of shareholders, a person must prove eligibility to submit a shareholder proposal under paragraph
(b) of Rule 14a-8 under the Securities Act of 1934, as amended, or any successor rule.
Requirement for Calling of Special Meetings of Shareholders. Special meetings of our shareholders may be called by shareholders only upon the proper written request
of the holders of at least ten percent of all the issued and outstanding shares of any class entitled to vote on the action proposed to be taken.
Preferred Stock. Our Board of Directors is authorized to cause us to issue, without a shareholder vote, preferred stock, which could entitle holders to voting or other
rights or preferences that could impede the success of any attempt to acquire us.
Board Authority to Amend Bylaws. Our Board of Directors has the authority to make, alter, amend or repeal our Amended and Restated Bylaws without the approval of
our shareholders, but our Amended and Restated Bylaws adopted by our Board of Directors may be altered, amended or repealed by the affirmative vote of a majority of our
shareholders entitled to vote in the election of directors.
Limitations on Liability and Indemnification of Officers and Directors
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 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 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 the Company 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.
Tennessee Anti-Takeover Statutes
Under the Tennessee Business Combination Act and subject to certain exceptions, corporations that have elected to be subject to the Tennessee Business Combination
Act may not engage in any "business combination" with an "interested shareholder" for a period of five years after the date on which the person became an interested
shareholder unless the "business combination" or the transaction which resulted in the shareholder becoming an "interested shareholder" is approved by the corporation's board
of directors prior to the date the "interested shareholder" attained that status.
"Business combinations" for this purpose generally include:
• mergers, consolidations, or share exchanges;
•
sales, leases, exchanges, mortgages, pledges, or other transfers of assets representing 10% or more of the aggregate market value of consolidated assets, the
aggregate market value of our outstanding shares, or our consolidated net income;
transactions which result in the issuances or transfers of shares from us to the interested shareholder;
the adoption of plans of liquidation or dissolution proposed by the interested shareholder;
transactions in which the interested shareholder's proportionate share of the outstanding shares of any class of securities is increased; or
financing arrangements pursuant to which the interested shareholder, directly or indirectly, receives a benefit, except proportionately as a shareholder.
•
•
•
•
Subject to certain exceptions, an "interested shareholder" generally is a person who, together with his or her affiliates and associates, owns, or within five years did own,
10% or more of our outstanding voting stock.
After the five-year moratorium, a corporation subject to the foregoing may complete a business combination if the transaction complies with all applicable requirements
of our Restated Charter and Amended and Restated Bylaws and applicable Tennessee law and:
is approved by the holders of at least two-thirds of the outstanding voting stock not beneficially owned by the interested shareholder; or
•
• meets certain fair price criteria set forth in the Tennessee Business Combination Act
We have elected to not be subject to the Tennessee Business Combination Act. We can give no assurance that we will or will not elect, through a charter or bylaw
amendment, to be governed by the Tennessee Business Combination Act in the future.
We also have not elected to be governed by the Tennessee Control Share Acquisition Act which prohibits certain shareholders from exercising in excess of 20% of the
voting power in a corporation acquired in a "control share acquisition" unless such voting rights have been previously approved by the disinterested shareholders. We can give
no assurance that we will or will not elect, through a charter or bylaw amendment, to be governed by the Tennessee Control Share Acquisition Act in the future.
The Tennessee Greenmail Act prohibits us from purchasing or agreeing to purchase any of our securities, at a price in excess of fair market value, from a holder of 3% or
more of our securities who has beneficially owned such securities for less than two years, unless the purchase has been approved by a majority of the outstanding shares of each
class of our voting stock or we make an offer of at least equal value per share to all holders of shares of such class. The Tennessee Greenmail Act may make a change of control
more difficult.
The Tennessee Investor Protection Act applies to tender offers directed at corporations that have "substantial assets" in Tennessee and that are either incorporated in or
have a principal office in Tennessee. Pursuant to the Investor Protection Act, no offeror shall make a takeover offer for an offeree company if the offeror beneficially owns 5%
or more of any class of equity securities of the offeree company, any of which was purchased within one year prior to the proposed tender offer, unless the offeror, before
making such purchase: (1) makes a public announcement of his or her intention with respect to changing or influencing the management or control of the offeree company; (2)
makes a full, fair and effective disclosure of such intention to the person from whom he or she intends to acquire such securities; and (3) files with the Tennessee Commissioner
of Commerce and Insurance (the “Commissioner”), and the offeree company a statement signifying such intentions and containing such additional information as may be
prescribed by the Commissioner. When the offeror intends to gain control of the offeree company, the registration statement must indicate any plans the offeror has for the
offeree. The Commissioner may require additional information concerning the takeover offer and may call for hearings. The Investor Protection Act does not apply to an offer
that the offeree company's board of directors recommends to shareholders.
In addition to requiring the offeror to file a registration statement with the Commissioner, the Tennessee Investor Protection Act requires the offeror and the offeree
company to deliver to the Commissioner all solicitation materials used in connection with the tender offer. The Investor Protection Act prohibits fraudulent, deceptive, or
manipulative acts or practices by either side and gives the Commissioner standing to apply for equitable relief to the Chancery Court of Davidson County, Tennessee, or to any
other chancery court having jurisdiction whenever it appears to the Commissioner that the offeror, the offeree company or any of their respective affiliates has engaged in or is
about to engage in a violation of the Investor Protection Act. Upon proper showing, the chancery court may grant injunctive relief. The Investor Protection Act further provides
civil and criminal penalties for violations.
FORWARD AIR CORPORATION
SUBSIDIARIES
Exhibit 21.1
FAF, Inc.
Forward Air, Inc.
Central States Trucking Co.
Central States Logistics, Inc.
TQI Holdings, Inc.
Forward Air Royalty, LLC
Forward Air Technology and Logistics Services, Inc.
FACSBI, LLC
Towne Holdings, LLC
Synergy Cargo Logistics, Inc.
TAF, LLC
Towne Air Freight, LLC
Forward Air Services, LLC
Forward Air Logistics Services, Inc.
TQI, Inc.
State of Incorporation
Tennessee
Tennessee
Delaware
Illinois
Delaware
State of Incorporation
Delaware
Tennessee
Delaware
Delaware
California
Indiana
Indiana
Delaware
State of Incorporation
Michigan
Michigan
FORWARD AIR, INC.
SUBSIDIARIES
TQI HOLDINGS, INC.
SUBSIDIARIES
Consent of Independent Registered Public Accounting Firm
Exhibit 23.1
We consent to the incorporation by reference in the following Registration Statements:
1. Registration Statement (Form S-8 No. 333-151198) pertaining to the Forward Air Corporation Amended and Restated Stock Option and Incentive Plan,
2. Registration Statement (Form S-8 No. 333-134294) pertaining to the Forward Air Corporation 2006 Non-Employee Director Stock Plan,
3. Registration Statement (Form S-8 No. 333-125872) pertaining to the Forward Air Corporation 2005 Employee Stock Purchase Plan,
4. Registration Statement (Form S-8 No. 333-120250) pertaining to the Forward Air Corporation 2000 Non-Employee Director Stock Option Award,
5. Registration Statement (Form S-8 No. 333-120249) pertaining to the Forward Air Corporation Non-Employee Director Stock Plan, as amended, and the Forward Air
Corporation 1999 Stock Option and Incentive Plan, as amended,
6. Registration Statement (Form S-8 No. 333-94249) pertaining to the Forward Air Corporation 1999 Stock Option and Incentive Plan,
7. Registration Statement (Form S-8 No. 333-211256) pertaining to the Forward Air Corporation 2016 Omnibus Incentive Compensation Plan and the Forward Air
Corporation Amended and Restated Non-Employee Director Stock Plan
of our reports dated March 15, 2024, with respect to the consolidated financial statements and schedule of Forward Air Corporation and the effectiveness of internal control
over financial reporting of Forward Air Corporation included in this Annual Report (Form 10-K) of Forward Air Corporation for the year ended December 31, 2023.
/s/ Ernst & Young LLP
Atlanta, GA
March 15, 2024
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO EXCHANGE ACT RULE 13a-14(a) (17 CFR 240.13a-14(a))
Exhibit 31.1
I, Michael L. Hance, Interim Chief Executive Officer, Chief Legal Officer and Secretary of Forward Air Corporation, certify that:
1. I have reviewed this report on Form 10-K for the year ended December 31, 2023 of Forward Air Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results
of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which
this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure
controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control
over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and
the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect
the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date:
March 15, 2024
/s/ Michael L. Hance
Michael L. Hance
Interim Chief Executive Officer, Chief Legal Officer
and Secretary
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO EXCHANGE ACT RULE 13a-14(a) (17 CFR 240.13a-14(a))
Exhibit 31.2
I, Rebecca J. Garbrick, Chief Financial Officer and Treasurer of Forward Air Corporation, certify that:
1. I have reviewed this report on Form 10-K for the year ended December 31, 2023 of Forward Air Corporation;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of
the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results
of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material
information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which
this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our
conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the
registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control
over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and
the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect
the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
Date:
March 15, 2024
/s/ Rebecca J. Garbrick
Rebecca J. Garbrick
Chief Financial Officer and Treasurer
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.1
In connection with the Annual Report on Form 10-K of Forward Air Corporation (the “Company”) for the year ended December 31, 2023 as filed with the Securities
and Exchange Commission on the date hereof (the “Report”), Michael L. Hance, Interim Chief Executive Officer, Chief Legal Officer and Secretary of the Company, certifies,
pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date:
March 15, 2024
/s/ Michael L. Hance
Michael L. Hance
Interim Chief Executive Officer, Chief Legal Officer
and Secretary
A signed original of this written statement required by Section 906 has been provided to Forward Air Corporation and will be retained by Forward Air Corporation and
furnished to the Securities and Exchange Commission or its staff upon request.
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
Exhibit 32.2
In connection with the Annual Report on Form 10-K of Forward Air Corporation (the “Company”) for the year ended December 31, 2023 as filed with the Securities
and Exchange Commission on the date hereof (the “Report”), Rebecca J. Garbrick, Chief Financial Officer and Treasurer of the Company, certifies, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date:
March 15, 2024
/s/ Rebecca J. Garbrick
Rebecca J. Garbrick
Chief Financial Officer and Treasurer
A signed original of this written statement required by Section 906 has been provided to Forward Air Corporation and will be retained by Forward Air Corporation and
furnished to the Securities and Exchange Commission or its staff upon request.