As filed with the Securities and Exchange Commission on August 9, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GXO Logistics, Inc.
(Exact name of Registrant as specified in its charter)
| Delaware (State or Other Jurisdiction of Incorporation or Organization) |
86-2098312
|
|
Two American Lane Greenwich,
Connecticut |
06831 (Zip Code) |
GXO Logistics, Inc. 2021 Omnibus Incentive Plan
(Full title of the plan)
Baris Oran
Two American Lane
Greenwich, Connecticut 06831
(Name and address of agent for service)
(203) 489-1287
(Telephone number, including area code, of agent for service)
With copies to:
Adam O. Emmerich
Viktor Sapezhnikov
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
(212) 403-1000 (Telephone)
(212) 403-2000 (Facsimile)
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. (Check one):
| Large accelerated filer x | Accelerated filer ¨ | Non-accelerated filer ¨ |
Smaller reporting company ¨
Emerging growth company ¨ |
If an emerging growth company, indicate by check mark 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 7(a)(2)(B) of the Securities Act (as defined below). ¨
CALCULATION OF REGISTRATION FEE
| Title of
Each Class of Securities to be Registered |
Amount to
be Registered(1) |
Proposed
Maximum Aggregate Offering Price Per Unit(2) |
Proposed
Maximum Aggregate Offering Price(2) |
Amount of Registration Fee | ||||
| Common Stock, par value $0.01 per share | 11,600,000 shares | $67.97 | $788,394,000.00 | $86,013.79 | ||||
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933 , as amended (the “Securities Act”), this registration statement (the “Registration Statement”) also covers any additional securities to be offered or issued pursuant to the 2021 Omnibus Incentive Plan (the “Plan”) of GXO Logistics, Inc. (the “Registrant”) relating to adjustments for changes resulting from stock dividends, stock splits and similar changes.
(2) Pursuant to Rule 457(c) and 457(h), under the Securities Act, the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated solely for the purpose of calculating the amount of the registration fee and are based upon the average of the high and low prices of shares of common stock of the Registrant as reported on the New York Stock Exchange on August 5, 2021.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering 11,600,000 shares of the Registrant’s common stock issuable pursuant to the Plan, which was adopted in connection with, and becomes effective upon, the pro rata distribution by XPO Logistics, Inc. (“XPO”) of all of the outstanding shares of common stock of the Registrant to XPO’s stockholders (the “Separation”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act, and the introductory note of Part I of Form S-8. The documents containing the information specified in Part I have been or will be delivered to the participants in the Plan as required by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Registrant with the U.S. Securities and Exchange Commission (the “SEC”), are incorporated herein by reference (other than information furnished and not filed, including under Item 2.02 or 7.01, in Current Reports on Form 8-K):
| 1. | The Registrant’s registration statement on Form 10 initially filed on June 9, 2021, as amended on July 7, 2021, July 15, 2021, July 19, 2021, and July 20, 2021, under the Securities Exchange Act of 1934, as amended (the “Exchange Act”); |
| 2. | The Registrant’s Quarterly Report on Form 10-Q for the period ended June 30, 2021, filed on August 9, 2021; |
| 3. | The description of the Registrant’s common stock contained in the Registrant’s Current Report on Form 8-K filed on July 26, 2021; and |
| 4. | The Registrant’s Current Report on Form 8-K filed on July 26, 2021 and on August 2, 2021. |
All documents filed by the Registrant with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement (other than any such documents or portions thereof that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, unless otherwise indicated therein, including any exhibits included with such Items), and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, in an amendment hereto or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained or incorporated by reference herein or in any subsequently filed amendment hereto or document which is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 6.1 of the Registrant’s second amended and restated bylaws requires the Registrant to indemnify and hold harmless, to the full extent permitted from time to time under the General Corporation Law of the State of Delaware (the “DGCL”) each person who is made or threatened to be made a party to any threatened, pending or completed action, suit, arbitration, alternative dispute resolution procedure, legislative hearing or inquiry or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Registrant. Such indemnification will cover all expenses, liabilities and losses reasonably incurred by such individuals.
Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Subsection (d) of Section 145 of the DGCL provides that any indemnification under subsections (a) and (b) of Section 145 (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of Section 145. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by the majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section 145 of the DGCL further provides that to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (a) and (b) of Section 145, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith and that such expenses may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in Section 145 of the DGCL; that any indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; that indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of such person’s heirs, executors and administrators; and empowers the corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liabilities under Section 145.
As authorized by the Registrant’s amended and restated bylaws, the Registrant may purchase and maintain at its expense on behalf of directors and officers insurance, within certain limits, covering liabilities which may be incurred by them in such capacities.
To the fullest extent permitted by the DGCL, the Registrant’s amended and restated certificate of incorporation provides that a director of the Registrant shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Item 9. Undertakings.
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;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% 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 this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the 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, the 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 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Greenwich, and State of Connecticut, on this 9th day of August, 2021.
| GXO LOGISTICS, INC. | |||
| By: | /s/ Baris Oran | ||
| Name: | Baris Oran | ||
| Title: | Chief Financial Officer | ||
|
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints MALCOLM WILSON, BARIS ORAN, and KARLIS KIRSIS and each of them, his or her true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments and registration statements filed pursuant to Rule 462(b) and otherwise, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as such person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated and on August 9, 2021.
|
| Signature | Title | Date |
| /s/ Malcolm Wilson | Director and Chief Executive Officer | |
| Malcolm Wilson | (Principal Executive Officer) | August 9, 2021 |
| /s/ Baris Oran | Chief Financial Officer | |
| Baris Oran | (Principal Financial Officer) | August 9, 2021 |
| /s/ Paul Blanchett | Chief Accounting Officer | |
| Paul Blanchett | (Principal Accounting Officer) | August 9, 2021 |
| /s/ Brad Jacobs | ||
| Brad Jacobs | Chairman of the Board of Directors | August 9, 2021 |
| /s/ Gena Ashe | ||
| Gena Ashe | Director | August 9, 2021 |
| /s/ Clare Chatfield | ||
| Clare Chatfield | Director | August 9, 2021 |
| /s/ Marlene Colucci | ||
| Marlene Colucci | Vice Chair of the Board of Directors | August 9, 2021 |
| /s/ Joli Gross | ||
| Joli Gross | Director | August 9, 2021 |
| /s/ Jason Papastavrou | ||
| Jason Papastavrou | Director | August 9, 2021 |
| /s/ Oren Shaffer | ||
| Oren Shaffer | Lead Independent Director | August 9, 2021 |
Exhibit 5.1
[Letterhead of Wachtell, Lipton, Rosen & Katz]
August 9, 2021
GXO Logistics, Inc.
Two American Lane
Greenwich, Connecticut 06831
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to GXO Logistics, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company with the U.S. Securities and Exchange Commission of a registration statement on Form S-8 (the “Registration Statement”) relating to the registration of 11,600,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”), issuable by the Company pursuant to the Company’s 2021 Omnibus Incentive Plan (the “Plan”).
This opinion letter is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act of 1933, as amended (the “Securities Act”).
In connection with this opinion letter, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of:
| (i) | the Company’s amended and restated certificate of incorporation, as currently in effect; |
| (ii) | the Company’s second amended and restated bylaws, as currently in effect; |
| (iii) | certain resolutions adopted by the Board of Directors of the Company; |
| (iv) | a copy of the Plan; and |
| (v) | the Registration Statement. |
We have also examined and relied upon such certificates, corporate records, agreements, instruments and other documents, and examined such matters of law, that we considered necessary or appropriate as a basis for the opinion set forth below.
In examining the foregoing documents, we have assumed that all signatures are genuine, all documents purporting to be originals are authentic, all documents for which signed copies were not available were in fact signed and duly authorized on behalf of the Company, as represented to us by the Company, all copies of documents conform to the originals (including those documents for which signed copies were not available), and the representations and statements included therein are accurate. As to any facts material to the opinions expressed herein that we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company.
Based upon the foregoing and subject to the assumptions, qualifications and limitations set forth herein, we are of the opinion that the Shares have been duly authorized by the requisite corporate action on behalf of the Company and, upon issuance in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.
We are members of the bar of the State of New York, and we do not express any opinion herein concerning any law other than the General Corporation Law of the State of Delaware, as amended (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting the foregoing). This opinion letter is being furnished solely in connection with the offer, sale and issuance of the Shares and may not be used, quoted, relied upon or otherwise referred to for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the aforementioned Registration Statement. In giving such consent, we do not thereby admit that we are experts within the meaning of the Securities Act or that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| Very truly yours, | |
| /s/ Wachtell, Lipton, Rosen & Katz |
-2-
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 19, 2021, with respect to the combined financial statements of GXO Logistics, Inc., incorporated herein by reference.
/s/ KPMG LLP
Stamford, Connecticut
August 9, 2021