As Filed with the Securities and Exchange Commission on November 21, 2022.
Registration No. 333-
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 | | | ☐ |
• | 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 and July 12, 2022 and declared effective on July 15, 2022; |
• | Current Reports on Form 8-K filed with the Commission on July 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. |
• | our ability to successfully operate as a standalone public company; |
• | changes in economic conditions generally and specifically in our industry sectors, and other risks relating to the global economy, including, but not limited to, the Russia-Ukraine conflict, the ongoing COVID-19 pandemic and other public health crises, and any related responses or actions by businesses and governments; |
• | reductions in cash flows received from our assets; |
• | our ability to take advantage of acquisition opportunities at favorable prices; |
• | a lack of liquidity surrounding our assets, which could impede our ability to vary our portfolio in an appropriate manner; |
• | the relative spreads between the yield on the assets we acquire and the cost of financing; |
• | adverse changes in the financing markets we access affecting our ability to finance our acquisitions; |
• | customer defaults on their obligations; |
• | our ability to renew existing contracts and enter into new contracts with existing or potential customers; |
• | the availability and cost of capital for future acquisitions; |
• | concentration of a particular type of asset or in a particular sector; |
• | competition within the rail, energy and intermodal sectors; |
• | the competitive market for acquisition opportunities; |
• | risks related to operating through joint ventures, partnerships, consortium arrangements or other collaborations with third parties; |
• | our ability to successfully integrate acquired businesses; |
• | obsolescence of our assets or our ability to sell our assets; |
• | exposure to uninsurable losses and force majeure events; |
• | infrastructure operations and maintenance may require substantial capital expenditures; |
• | the legislative/regulatory environment and exposure to increased economic regulation; |
• | exposure to the oil and gas industry’s volatile oil and gas prices; |
• | difficulties in obtaining effective legal redress in jurisdictions in which we operate with less developed legal systems; |
• | our ability to maintain our exemption from registration under the Investment Company Act of 1940 and the fact that maintaining such exemption imposes limits on our operations; |
• | our ability to successfully utilize leverage in connection with our investments; |
• | foreign currency risk and risk management activities; |
• | effectiveness of our internal control over financial reporting; |
• | exposure to environmental risks, including natural disasters, increasing environmental legislation and the broader impacts of climate change; |
• | changes in interest rates and/or credit spreads, as well as the success of any hedging strategy we may undertake in relation to such changes; |
• | actions taken by national, state, or provincial governments, including nationalization, or the imposition of new taxes, could materially impact the financial performance or value of our assets; |
• | our dependence on our Manager and its professionals and actual, potential or perceived conflicts of interest in our relationship with our Manager; |
• | effects of the merger of Fortress Investment Group LLC (“Fortress”) with affiliates of SoftBank Group Corp. (“SoftBank”); |
• | volatility in the market price of our shares; and |
• | the inability to pay dividends to our stockholders in the future. |
• | 2,000,000,000 shares of common stock, par value $0.01 per share; and |
• | 200,000,000 shares of preferred stock, par value $0.01 per share. |
• | restricting dividends in respect of our common stock; |
• | diluting the voting power of our common stock or providing that holders of shares of preferred stock have the right to vote on matters as a class; |
• | impairing the liquidation rights of our common stock; or |
• | delaying or preventing a change of control of us. |
• | the Fortress Parties and Ares and their affiliates (the “Ares Parties”) have the right to, and have no duty to abstain from, exercising such right to, engage or invest in the same or similar business as us, do business with any of our clients, customers or vendors or employ or otherwise engage any of our officers, directors or employees; |
• | if the Fortress Parties or the Ares Parties, or any of each of their officers, directors or employees acquire knowledge of a potential transaction that could be a corporate opportunity, each has no duty to offer such corporate opportunity to us, our stockholders or affiliates; |
• | we have renounced any interest or expectancy in, or in being offered an opportunity to participate in, such corporate opportunities; and in the event that any of our directors and officers who is also a director, officer or employee of any of the Fortress Parties or the Ares Parties, acquire knowledge of a corporate opportunity or is offered a corporate opportunity, provided that this knowledge was not acquired solely in such person’s capacity as our director or officer and such person acted in good faith, then such person is deemed to have fully satisfied such person’s fiduciary duty and is not liable to us if any of the Fortress Parties or the Ares Parties pursues or acquires the corporate opportunity or if such person did not present the corporate opportunity to us. |
• | a citizen or resident of the United States; |
• | a corporation created or organized in the United States or under the laws of the United States, or of any state thereof, or the District of Columbia; |
• | an estate, the income of which is includable in gross income for U.S. federal income tax purposes regardless of its source; or |
• | a trust if (i) a U.S. court is able to exercise primary supervision over the administration of such trust and one or more U.S. fiduciaries have the authority to control all substantial decisions of the trust or (ii) the trust has a valid election in effect to be treated as a U.S. person. |
• | the gain is effectively connected with such Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable tax treaty, is attributable to a U.S. permanent establishment of such Non-U.S. Holder); |
• | in the case of a Non-U.S. Holder that is a non-resident alien individual, such Non-U.S. Holder is present in the United States for 183 or more days in the taxable year of disposition and certain other requirements are met; or |
• | We are or have been a “United States real property holding corporation” (“USRPHC”) at any time within the shorter of the five-year period ending on the date of such sale, exchange, or other taxable disposition or the period that such Non-U.S. Holder held our common stock and either (a) our common stock is not treated as regularly traded on an established securities market at the time of the sale, or (b) such Non-U.S. Holder owns or owned (actually or constructively) more than 5% of our common stock at any time during the shorter of the two periods mentioned above. |
ITEM 14. | OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. |
Securities and Exchange Commission Registration Fee | | | $10,882 |
Accounting Fees and Expenses | | | $75,000 |
Legal Fees and Expenses | | | $115,000 |
Printing and Engraving Fees and Expenses | | | $13,000 |
Total | | | $213,882 |
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 by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(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 |
| | 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). | |
| | 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 auditors. | |
| | Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.1). | |
| | Powers of Attorney (included on the signature pages hereto). | |
| | Filing Fee Table. |
| | 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 | | |
Re: |
FTAI Infrastructure Inc.
Registration Statement on Form S-3 |
Very truly yours,
|
|
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
|
Security Type
|
Security
Class Title
|
Fee
Calculation Rule |
Amount
Registered(1) |
Proposed
Maximum Offering Price Per Share |
Maximum
Aggregate
Offering
Price
|
Fee
Rate
|
Amount of
Registration Fee |
|
Fees to Be Paid
|
Equity
|
Common Stock, par value $0.01 per share(1)
|
457(h)(1), 457(c)
|
29,985,000
|
$2.76(4)
|
$82,758,600.00
|
$0.0001102
|
$9,120.00
|
Fees to Be Paid
|
Equity
|
Common Stock, par value $0.01 per share(2)
|
457(h)(1)
|
5,434,783
|
$2.77(5)
|
$15,054,348.91
|
$0.0001102
|
$1,658.99
|
Fees to Be Paid
|
Equity
|
Common Stock, par value $0.01 per share(3)
|
457(h)(1)
|
336,862
|
$2.77(5)
|
$933,107.74
|
$0.0001102
|
$102.83
|
Fees Previously Paid
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
Total Offering Amounts
|
$98,746,056.65
|
0.0001102
|
$10,881.82
|
|||||
Total Fees Previously Paid
|
—
|
|||||||
Total Fee Offsets
|
—
|
|||||||
Net Fee Due
|
$10,881.82
|
(1) |
Represents 29,985,000 shares of common stock, par value $0.01 per share (the “common stock”), of FTAI Infrastructure Inc. (the “Company”) available as
of the date hereof for issuance under the FTAI Infrastructure Inc. Nonqualified Stock Option and Incentive Award Plan (the “Plan”). Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the amount to
be registered also includes an indeterminate number of additional shares of common stock that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction that increases the
number of the Company’s outstanding shares of common stock.
|
(2) |
Represents 5,434,783 shares of common stock of the Company that would be issued upon the exercise of outstanding options granted under the Plan.
Pursuant to Rule 416(a) under the Securities Act, the amount to be registered also includes an indeterminate number of additional shares of common stock that become issuable under the Plan by reason of any stock dividend, stock split,
recapitalization, or other similar transaction that increases the number of the Company’s outstanding shares of common stock.
|
(3) |
Represents 336,862 shares of common stock of the Company that may be offered for resale from time to time pursuant to this registration statement by
the stockholders described herein, which shares (i) have been or may be issued under the Plan (including, without limitation, in connection with the exercise of options) or (ii) would be issued upon the exercise of options granted in
connection with the spin-off of the Company from FTAI Aviation Ltd. (f/k/a Fortress Transportation and Infrastructure Investors LLC) on May 15, 2013. Pursuant to Rule 416(a) under the Securities Act, the amount to be registered also
includes an indeterminate number of additional shares of common stock that become issuable under the Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction that increases the number of the
Company’s outstanding shares of common stock.
|
(4) |
Estimated solely for the purpose of calculating the registration fee. This registration fee has been calculated pursuant to Rules 457(h)(1) and 457(c)
of the Securities Act, based upon the average of the high and low prices of the Company’s common stock on November 11, 2022, as reported by the Nasdaq Global Select Market, which was $2.76.
|
(5) |
Estimated solely for the purpose of calculating the registration fee. This registration fee has been calculated pursuant to Rule 457(h)(l). The price
of $2.77 per share of Common stock represents the weighted average of the exercise prices for the outstanding options as of November 18, 2020.
|