Amendment No. 1 to the Original Merger Agreement, dated January 22, 2024, by and among Forward Air Corporation and Omni Newco, LLC

This AMENDMENT NO. 1 (this “Amendment”) TO THE AGREEMENT AND PLAN OF MERGER, dated as of August 10, 2023 (the “Merger Agreement”), among Forward Air Corporation, a Tennessee corporation (“Parent”), Central States Logistics, Inc., an Illinois corporation, Clue OpCo LLC, a Delaware limited liability company, Omni Newco, LLC, a Delaware limited liability company (the “Company”), and the other parties thereto is entered into as of January 22, 2024, between Parent and the Company. Capitalized terms not otherwise defined in this Amendment shall have the meanings ascribed to such terms in the Merger Agreement.

WHEREAS, Parent and the Company are each a party to the Action titled Omni Newco, LLC v Forward Air Corporation, et al, No. 2023-1104 (Del. Ch.) (the “Litigation”);

WHEREAS, substantially concurrently with the execution and delivery of this Amendment, the parties to the Litigation will enter into a Settlement and Release Agreement, dated as of the date hereof (the “Settlement and Release Agreement”), to settle the Litigation on the terms set forth therein;

WHEREAS, the Settlement and Release Agreement provides that (i) the Parent and the Company will amend the Merger Agreement as set forth herein, (ii) Parent shall dismiss all claims that it brought in the Litigation with prejudice and agree to a stipulation of dismissal that dismisses all claims asserted by the parties with prejudice and (iii) the Company shall dismiss all claims that it brought in the Litigation and agree to a stipulation of dismissal that dismisses all claims asserted by the parties with prejudice;

WHEREAS, Parent and the Company desire to amend the Merger Agreement as set forth herein in accordance with Section 9.04 thereof; and

WHEREAS, as of the date hereof, each of the Major Shareholders has delivered to Parent a written consent approving, among other things, the transactions contemplated by this Amendment.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereby agree as follows:

““Aggregate Gross Cash Consideration” means $20,000,000.”

““Aggregate Company Unblocked Opco Series C-2 Unit Consideration” means that number of Opco Series C-2 Preferred Units equal to the difference of (i) 8,880,010 minus (ii) the aggregate number of Parent Series C Preferred Units constituting the Aggregate Blocked Stock Consideration (Parent Preferred), subject to adjustment in accordance with Section 3.05.”

““Designated Representative Expense Amount” means an amount equal to $20,000,000 minus (i) the Participation Payment Amount (including the employer-paid portion of any payroll Taxes thereon) minus (ii) the Transaction Bonus Amount (including the employer-paid portion of any payroll Taxes thereon).”

““Expenses” means all out‑of‑pocket fees and expenses (including all fees and expenses of counsel, accountants, investment banking firms and other financial institutions, experts, communications firms and consultants to a Party and its Affiliates and the Major Shareholders and their respective Affiliates) actually incurred or accrued by a Party or its Affiliates or on its or their behalf or for which it or they are liable in connection with, arising from, or related to the authorization, preparation, negotiation, execution, performance and enforcement (other than the payment of any success fees in connection with the Litigation) of this Agreement and the Transactions (including the Mergers) contemplated hereby, the preparation, negotiation and the execution of the Transaction Agreements, the solicitation of stockholder approvals, the filing of any required notices under applicable foreign, federal or state antitrust, competition, fair trade or similar Laws or other similar regulations and all other matters related to the closing of the Transactions, including the Mergers; provided, however, that neither the Participation Payment Amount in respect of the holders of Existing Company Class B Participation Units nor the Transaction Bonus Amount paid pursuant to Section 2.05(b) shall be an “Expense” for purposes of this Agreement.”

“(a)          Promptly following the First Amendment Date and no later than two Business Days prior to the Closing Date, the Company (on behalf of itself, the Blockers, Bondco and Management Holdings) shall deliver to Parent a statement prepared in good faith, substantially in the form of Section 2.01 of the Company Disclosure Letter (which has been illustratively prepared as if …”

“Section 2.03          Closing; Effective Time.  The closing of the Transactions (the “Closing”) shall take place on (a) the second Business Day after the satisfaction or written waiver (where permissible) of the conditions set forth in Article VIII (in each case, other than those conditions that by their terms or nature are to be satisfied at the Closing, but subject to the satisfaction or written waiver (where permissible) of those conditions at the Closing), subject to the acknowledgements and agreements set forth in Section 14(a) of Amendment No. 1; provided that in no event shall the Closing take place prior to January 25, 2024 without Parent’s written consent; or (b) such other date and time as is mutually agreed to in writing by Parent and the Company.  Parent and the Company each agree (i) to use their respective reasonable best efforts to close not later than January 25, 2024 (subject to the satisfaction or written waiver of the conditions set forth in Article VIII) and (ii) that a Closing that takes place on January 26, 2024 or January 29, 2024, in either case, due solely to the fact that the lenders under Parent’s existing credit facilities decline to grant consents or waivers that would permit the Closing to occur prior to January 26, 2024, shall not be a breach by Parent of clause (a) above.  The Closing shall be held remotely by exchange of documents and signatures (or their electronic counterparts).  Subject to the terms and conditions of this Agreement, as soon as practicable on the Closing Date, the Parties shall cause:”

“(ii)          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, together the instructions for delivery thereof and a validly completed and duly executed W-9 or W-8BEN for each such Person owed Expenses;”

“(iii)          to Surviving Company (or its applicable employing Subsidiary), (A) the Participation Payment Amount, to be distributed to the holders of Existing Company Class B Participation Units as set forth in Section 2.05(c), and (B) the aggregate amount of transaction bonuses granted by the Company following the date hereof (any such bonuses, the “Transaction Bonuses” and the aggregate amount thereof the “Transaction Bonus Amount”) and payable in connection with the Transactions, in each case to the extent set forth on a schedule provided by the Company to Parent promptly following the First Amendment Date and no later than two Business Days prior to the Closing Date, to be distributed to the recipients thereof as set forth in Section 2.05(c); and;”

“(iv)          to the Designated Representative, a wire transfer of immediately available funds in an aggregate amount equal to the Designated Representative Expense Amount, pursuant to the instructions for delivery thereof specified by the Designated Representative.”

“(c)          Parent will take all actions necessary so that as soon as administratively practicable after the Closing (but in any event no later than the first payroll run of the Surviving Company (or its applicable employing Subsidiary) after the Closing), Parent (or its applicable employing Subsidiary) shall pay or cause to be paid, in each case through Parent’s or its applicable Subsidiary’s payroll or accounts payable system, as applicable, and less any applicable Tax withholding, (i) to each holder of Existing Company Class B Participation Units, the Participation Payment Amount to which such holder is entitled as set forth in the Closing Capitalization Schedule and (ii) to each current or former Service Provider owed a Transaction Bonus Amount pursuant to the schedule contemplated by Section 2.05(b)(iii) as being paid on or around the Closing Date, the Transaction Bonus Amount to which such Service Provider is entitled to be paid on or around the Closing Date as set forth in Section 2.05(b)(iii); provided, in each case, Parent shall timely remit, or cause the Surviving Company or the applicable employing Subsidiary to timely remit, such withheld Taxes to the appropriate Governmental Authority on behalf of the applicable holder of Existing Company Class B Participation Unit or Person designated as being owed a transaction bonus.”

“(d)          Parent will take all reasonable actions necessary so that on the first payroll run of the Surviving Company (or its applicable employing Subsidiary) following the first anniversary of the Closing Date (the “Retention Bonus Date”), Parent (or its applicable employing Subsidiary) shall pay or cause to be paid, in each case through Parent’s or its applicable Subsidiary’s payroll or accounts payable system, as applicable, and less any applicable Tax withholding, (i) to each Service Provider who (continues to be employed or engaged by Parent or any of its Affiliates as of the Retention Bonus Date and is owed a Transaction Bonus Amount pursuant to the schedule contemplated by Section 2.05(b)(iii) under the heading “Retention Bonus Payments”), such Transaction Bonus Amount; provided, in each case, Parent shall timely remit, or cause the Surviving Company or the applicable employing Subsidiary to timely remit, such withheld Taxes to the appropriate Governmental Authority on behalf of the Person designated as being owed a transaction bonus.  To the extent a Service Provider who would otherwise be entitled to receive a Transaction Bonus Payment pursuant to the previous sentence but is no longer employed or engaged by Parent or one of its Affiliates as of the Retention Bonus Date, such Transaction Bonus Payment shall be paid to the Designated Representative, following which the Designated Representative may, in its sole discretion, elect for such Transaction Bonus Payment to be remitted either (x) to such departed Service Provider or (y) to the Securityholders pro rata.”“

“Assuming (x) the Debt Financing is funded in accordance with the Debt Financing Letters (and, as applicable, the proceeds are released from escrow and available to be applied to consummate the Transactions) and (y) the satisfaction of the conditions set forth in Section 8.01 and Section 8.02, Parent will have at the Closing, sufficient cash, available lines of credit or other sources of immediately available funds that, taken together with the proceeds of any Debt Financing, will enable it to pay the Aggregate Gross Cash Consideration and other amounts payable by a Parent Party under this Agreement and to finance the refinancing of Indebtedness contemplated by the Debt Commitment Letter and this Agreement.”

“(xi)          incur any Indebtedness, or issue or sell any debt securities or warrants or other rights to acquire any debt security of any Company Party, in each case, in excess of $1,000,000 in the aggregate (the “Indebtedness Basket”) (excluding any undrawn amounts under credit lines), other than draws under revolving (or similar) credit facilities in existence on the date hereof or any loans incurred pursuant to Section 15(c) of Amendment No. 1; provided that if the Closing has not occurred on or before (A) February 10, 2024, the Indebtedness Basket shall be, in aggregate, $10,000,000 plus the aggregate amount of any earnouts or deferred or contingent payment obligations of the Company Parties that become payable on or before March 31, 2024 and (B) March 31, 2024, the Indebtedness Basket shall be, in aggregate, an additional $62,500,000 plus the aggregate amount of any earnouts or deferred or contingent payment obligations of the Company Parties that become payable on or after April 1, 2024 and on or before the Closing;”

“(i)          the Closing shall not have occurred on or before 11:59 p.m., Eastern time on June 30, 2024 (the “Outside Date”); provided that the right to terminate this Agreement under this Section 9.01(b)(i) shall not be available to (A) Parent if any Parent Party’s failure to fulfill any obligation under this Agreement or other willful breach has been a material cause of, or resulted in, the failure of the Closing to occur on or before such time, or (B) the Company if any Company Party’s failure to fulfill any obligation under this Agreement or other willful breach has been a material cause of, or resulted in, the failure of the Closing to occur on or before such time; or (C) the Company (on behalf of itself and the other Company Parties) if any material breach by the Major Shareholders of their respective obligations under any the Securityholder Consent Agreement executed by it and such uncured breach has been a material cause of, or resulted in, the failure of the Closing to occur before 11:59 p.m., Eastern time, on the Outside Date; or”

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.