1. |
Section 1.01 of the Merger Agreement is hereby amended by:
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(a) |
amending and restating the definition of “Aggregate Cash Consideration”, in its entirety, to read as follows:
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(b) |
amending and restating the definition of “Aggregate Gross Cash Consideration”, in its entirety, to read as follows:
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(c) |
amending and restating the definition of “Aggregate Company Unblocked Opco Series C-2 Unit Consideration”, in its entirety, to read as follows:
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(d) |
amending and restating the definition of “Designated Representative Expense Amount”, in its entirety, to read as follows:
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(e) |
amending and restating the definition of “Expenses”, in its entirety, to read as follows:
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(f) |
adding the following new defined terms in the appropriate alphabetical order:
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2. |
Section 2.01(a) of the Merger Agreement is hereby amended by amending and restating the language prior to clause (i) thereof, in its entirety, to read as follows:
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3. |
Section 2.03 of the Merger Agreement is hereby amended by amending and restating the first paragraph thereof, in its entirety, to read as follows:
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4. |
Section 2.05 of the Merger Agreement is hereby amended by amending and restating clause (b)(ii) thereof, in its entirety, to read as follows:
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5. |
Section 2.05 of the Merger Agreement is hereby amended by amending and restating clause (b)(iii) thereof, in its entirety, to read as follows:
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6. |
Section 2.05 of the Merger Agreement is hereby amended by amending and restating clause (b)(iv) thereof, in its entirety, to read as follows:
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7. |
Section 2.05 of the Merger Agreement is hereby amended by amending and restating clause (c) thereof, in its entirety, to read as follows:
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8. |
Section 2.05 of the Merger Agreement is hereby amended by inserting a new clause (d) thereto, which shall read as follows:
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9. |
Section 5.06 of the Merger Agreement is hereby amended by amending and restating the sixth sentence thereof, in its entirety, to read as follows:
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10. |
Section 6.01(b) of the Merger Agreement is hereby amended by amending and restating clause (xi) thereof, in its entirety, to read as follows:
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11. |
Section 9.01(b) is hereby amended by amending and restating clause (i) thereof, in its entirety, to read as follows:
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12. |
Parent and the Company hereby acknowledge and agree that: (a) the Marketing Period has been completed in accordance with the terms of the Merger Agreement; and (b) if the Closing
does not occur prior to or on February 12, 2024, the Debt Financing in the amounts set forth in the Debt Commitment Letter may no longer be available under the terms of the Debt Commitment Letter. In the event that the Debt Financing in the
amounts set forth in the Debt Commitment Letter may no longer be available under the terms of the Debt Commitment Letter, each Parent Party shall use its reasonable best efforts to arrange and obtain Alternative Financing in accordance with
the terms of Section 7.14 of the Merger Agreement. For the avoidance of doubt, the obtaining of any Debt Financing, Alternative Financing or any other third-party financing is not a condition to the Closing, and Parent shall consummate the
Transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing, any Alternative Financing or any other third-party financing, subject only to satisfaction or waiver of the conditions set
forth in Section 8.01 and Section 8.02.
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13. |
Each of Parent and the Company hereby reaffirms that it will fulfill all of its obligations under the Merger Agreement (after giving effect to this Amendment). Parent reaffirms its
obligations under Section 7.05 of the Merger Agreement and agrees to honor in good faith the contractual severance requirements for each employee of the Company or its Subsidiaries who continues to be employed by the Company or the Surviving
Company at any time following the Closing.
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14. |
For all purposes of the Merger Agreement, each of Parent and the Company irrevocably acknowledge and agree that:
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(a) |
As of the First Amendment Date, each of the conditions to the Closing set forth in Section 8.01(b), Section 8.01(c) and Section 8.03(f) of the Merger Agreement have
been satisfied.
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(b) |
Parent is not aware of any fact or event that to its knowledge would constitute a breach of any representations, warranties, covenants or agreements of any Company
Parties contained in the Merger Agreement or other Transaction Agreements. The Company is not aware of any fact or event that to its knowledge would constitute a breach of any representations, warranties, covenants or agreements of any
Parent Parties contained in the Merger Agreement or other Transaction Agreements.
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(c) |
Parent is able to perform its obligations as required under the Debt Financing Documents in effect as of the First Amendment Date and is not aware of any fact or
event as of the First Amendment Date that would reasonably be expected to cause the conditions to the funding thereof or release of proceeds thereof from escrow, as applicable, not to be satisfied.
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15. |
Parent and the Company acknowledge and agree that:
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(a) |
Each party hereto hereby agrees to the terms set forth in Schedule 1 to this Amendment (Acknowledgement) in order to induce the other party hereto to enter into this Amendment.
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(b) |
If, following the First Amendment Date, any Action results in a Restraint that has caused the condition set forth in Section 8.01(a) to not be satisfied as of or
after January 26, 2024, and the Closing shall not have occurred on or prior to February 10, 2024 as a result of the failure of such condition to be satisfied, the amendments to the Merger Agreement set forth in Sections 1(a) and 1(b) of this
Amendment shall be null and void. For the avoidance of doubt, upon the occurrence of the circumstances described in the immediately preceding sentence, the meanings of the terms “Aggregate Gross Cash Consideration” and “Aggregate Company
Unblocked Opco Series C‑2 Unit Consideration” shall revert for all purposes to the meanings ascribed to such terms in this Agreement, in effect as of August 10, 2023.
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(c) |
Without limiting the generality of the foregoing, if the Closing shall not have occurred on or prior to March 31, 2024, Parent shall fund when due any interest
accrued during the period beginning on January 1, 2024 and ending on March 31, 2024 on the Company Parties’ aggregate Indebtedness existing as of the date of the Merger Agreement or incurred in accordance with Section 6.01(b)(xi) of the
Merger Agreement in the form of a loan made within five Business Days of March 31, 2024 from one or more Parent Parties to one or more Company Parties, which loans shall be 100% forgiven by the applicable Parent Parties upon any termination
of the Merger Agreement pursuant to Section 9.01 thereof.
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16. |
At the Closing, Parent shall pay or cause to be paid, to the Persons owed Expenses of the Company Parties, the amount of such Expenses owed thereto, in each case to the extent set
forth on a schedule of Company Party Expenses provided by the Company to Parent promptly following the First Amendment Date and no later than two Business Days prior to the Closing Date. Parent acknowledges and agrees that Company Party
Expenses set forth on a schedule made available to Parent prior to the First Amendment Date are reasonable and non-refundable, and Parent agrees that it will not bring any Action in requesting the recoupment thereof (without prejudice to any
Expenses provided by the Company to Parent following the execution of this Amendment).
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17. |
The provisions of this Amendment shall be effective as of the date hereof; provided, however, if, following the date hereof (a) Parent asserts that any condition set forth in Section 8.02 of the Merger Agreement has not been satisfied and the Parent
Parties are not obligated to consummate the Transactions in accordance with the terms of the Merger Agreement or Parent fails to take all actions as are necessary on Parent’s part in accordance with the terms and conditions of the Merger
Agreement to consummate the Transactions and (b) the Company Parties bring an Action against the Parent Parties for specific performance of the Parent Parties’ obligation to consummate the Transactions and a court of competent jurisdiction
issues a final and nonappealable order compelling specific performance by the Parent Parties to consummate the Transactions in accordance with the terms
of the Merger Agreement, then the amendments to the Merger Agreement set forth in Sections 1(a) and 1(b) hereof shall be null and void. For the avoidance of doubt, upon the occurrence of the circumstances described in the immediately
preceding sentence, the meanings of the terms “Aggregate Gross Cash Consideration” and “Aggregate Company Unblocked Opco Series C‑2 Unit Consideration” shall revert for all purposes to the meanings ascribed to such terms in the Merger
Agreement, in effect as of August 10, 2023.
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18. |
In the event that the Closing does not occur in accordance with Section 2.03 of the Merger Agreement, Parent will not oppose any effort by the Company to seek expedited proceedings
in any Action by the Company against Parent seeking specific performance to consummate the transactions contemplated by the Merger Agreement.
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19. |
The provisions of Article X of the Merger Agreement shall apply mutatis mutandis to this
Amendment, and to the Merger Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby. Except as expressly amended hereby or by the Settlement and Release Agreement, all of the
terms and provisions of the Merger Agreement shall remain in full force and effect. From and after the date of this Amendment, each reference in the Merger Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import, and
each reference to the Merger Agreement, including by “thereunder”, “thereof” or words of like import in any document, shall mean and be a reference to the Merger Agreement as amended by this Amendment. Exhibits A through L attached to the
Merger Agreement shall be amended to the extent necessary to conform to the definition of “Aggregate Company Unblocked Opco Series C‑2 Unit Consideration” set forth in this Amendment.
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20. |
Nothing in this Amendment shall adversely affect the rights of the Company to seek or obtain any injunction, specific performance or any other equitable relief to cause Parent to
consummate the transactions contemplated by the Merger Agreement, in each case as and to the extent permitted by the Merger Agreement as amended hereby.
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FORWARD AIR CORPORATION
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BY:
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/s/ Michael L. Hance
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Name:
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Michael L. Hance
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Title:
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Chief Legal Officer and Secretary
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OMNI NEWCO, LLC
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BY:
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/s/ Charles Anderson
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Name:
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Charles Anderson
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Title:
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Authorized Signatory
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