Delaware | | | 87-4407005 |
(State or Other Jurisdiction of Incorporation or Organization) | | | (I.R.S. Employer Identification No.) |
Large accelerated filer | | | ☐ | | | | | Accelerated filer | | | ☒ | |
Non-accelerated filer | | | ☐ | | | | | Smaller reporting company | | | ☐ | |
| | | | | | Emerging growth company | | | ☐ |
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• | Quarterly Reports on Form 10-Q (the “Form 10-Q”), filed with the Commission on August 25, 2022 and November 3, 2022; |
• | Registration Statement on Form 10 (the “Form 10”), filed with the Commission on April 29, 2022, as amended on May 26, 2022, July 1, 2022 andJuly 12, 2022 and declared effective on July 15, 2022; |
• | Current Reports on Form 8-K filed with the Commission onJuly 15, 2022, July 19, 2022, July 21, 2022, July 25, 2022, August 1, 2022 and November 21, 2022; and |
• | the description of our Capital Stock set forth in the Form 10. |
| | Immediately Prior to this Offering | | | Immediately After this Offering | ||||||||||
Selling Stockholders | | | Amount and Nature of Beneficial Ownership(1) | | | Percent of Class | | | Shares Offered | | | Amount and Nature of Beneficial Ownership | | | Percent of Class |
Fortress Investment Group LLC and certain affiliates(2) | | | 5,303,855 | | | 5.3% | | | 14,740,619(3) | | | — | | | — |
Joseph P. Adams, Jr. | | | 280,973 | | | *%(4) | | | 208,060(3) | | | — | | | — |
James L. Hamilton | | | 7,000 | | | *%(4) | | | 5,000(3) | | | — | | | — |
Judith A. Hannaway | | | 10,000 | | | *%(4) | | | 10,000 | | | — | | | — |
Ray M. Robinson | | | 56,697 | | | *%(4) | | | 10,000(3) | | | — | | | — |
Kenneth J. Nicholson | | | 416,974 | | | *%(4) | | | 212,407(3) | | | | |
(1) | The number shown includes shares of common stock held by the Selling Stockholders and shares of common stock underlying outstanding options held by the Selling Stockholders that are exercisable within 60 days of the date hereof (assuming no exercise by persons other than the Selling Stockholders). |
(2) | Includes 713,694 shares held by Fortress Worldwide Transportation and Infrastructure Investors LP, 34,950 shares held by FTAI Offshore Holdings L.P. and 4,555,211 options held by the Manager. |
(3) | The number shown includes shares of common stock that may be offered for resale from time to time, and includes shares of our common stock underlying options that are not exercisable within 60 days of the date hereof. |
(4) | Denotes less than 1%. |
(i) | part of a class of securities registered under Section 12(b) or 12(g) of the Exchange Act, or |
(ii) | sold to the Plan as part of an offering of securities to the public pursuant to an effective registration statement under the Securities Act and the class of securities of which such security is part is registered under the Exchange Act within the requisite time. |
ITEM 14. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
Securities and Exchange Commission Registration Fee | | | $ |
FINRA Filing Fee | | | $18,038 |
Accounting Fees and Expenses | | | $ |
Legal Fees and Expenses | | | $ |
Printing Fees | | | $13,000 |
Transfer Agents and | | | $20,000 |
Miscellaneous | | | $ |
Total | | | $ |
ITEM 15. | INDEMNIFICATION OF DIRECTORS AND OFFICERS. |
ITEM 16. | LIST OF EXHIBITS. |
ITEM 17. | UNDERTAKINGS. |
(a) | The undersigned registrant hereby undertakes: |
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated |
(5) |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described under Item 15 above, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of a registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. |
EXHIBIT NO. | | | EXHIBIT |
1.1* | | | Form of Underwriting Agreement for common stock, preferred stock, warrants or debt securities. |
| | Amended and Restated Certificate of Incorporation of FTAI Infrastructure Inc (incorporated by reference to Exhibit 3.2 of the Company’s Current Report on Form 8-K, filed on August 1, 2022). | |
| | Amended and Restated Bylaws of FTAI Infrastructure Inc. (incorporated by reference to Exhibit 3.3 of the Company’s Current Report on Form 8-K, filed on August 1, 2022). | |
| | Certificate of Designations of Series A Preferred Stock of FTAI Infrastructure Inc. (incorporated by reference to Exhibit 3.4 of the Company’s Current Report on Form 8-K, filed on August 1, 2022). | |
| | Form of Debt Securities Indenture (including form of Debt Security) | |
4.2* | | | Form of any Preferred Stock Certificate. |
4.3* | | | Form of Debt Warrant Agreement. |
4.4* | | | Form of Debt Warrant Certificate. |
4.5* | | | Form of Stock Warrant Agreement. |
4.6* | | | Form of Stock Warrant Certificate. |
4.7* | | | Form of Deposit Agreement. |
4.8* | | | Form of Depositary Receipt. |
4.9* | | | Form of Purchase Contract. |
4.10* | | | Form of Purchase Unit. |
| | Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to legality. | |
| | Consent of Ernst & Young LLP, independent registered public accounting firm. | |
| | Consent of Ernst & Young LLP, independent registered public accounting firm. | |
| | Consent of Ernst & Young LLP, independent | |
| | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). | |
| | Powers of Attorney (included on the signature pages hereto). | |
| | Statement of Eligibility on Form T-1 of the Trustee under the Indenture pursuant to the Trust Indenture Act of 1939, as amended. | |
| | Filing Fee Table. |
* | To be filed by amendment hereto or pursuant to a Current Report on Form 8-K to be incorporated by reference. |
| | FTAI INFRASTRUCTURE INC. | |||||||
| | | | | | ||||
| | By: | | | /s/ Kenneth J. Nicholson | ||||
| | | | Name: | | | Kenneth J. Nicholson | ||
| | | | Title: | | | Chief Executive Officer and President |
NAME | | | TITLE | | | DATE |
/s/ Kenneth J. Nicholson | | | Chief Executive Officer and President (Principal Executive Officer) | | | November 21, 2022 |
Kenneth J. Nicholson | | | ||||
| | | | |||
/s/ Scott Christopher | | | Chief Financial Officer, Chief Accounting Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) | | | November 21, 2022 |
Scott Christopher | | | ||||
| | | | |||
/s/ Joseph P. Adams, Jr. | | | Chairman of the Board | | | November 21, 2022 |
Joseph P. Adams, Jr. | | | | | ||
| | | | |||
/s/ James L. Hamilton | | | Director | | | November 21, 2022 |
James L. Hamilton | | | | | ||
| | | | |||
/s/ Judith A. Hannaway | | | Director | | | November 21, 2022 |
Judith A. Hannaway | | | | | ||
| | | | |||
/s/ Ray M. Robinson | | | Director | | | November 21, 2022 |
Ray M. Robinson | | | | |