As filed with the Securities and Exchange Commission
on June 7, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
WHEELS UP EXPERIENCE
INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
98-1617611 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
2135 American Way
Chamblee, Georgia 30341
Telephone: (212) 257-5252
(Address, including zip code, and telephone
number, including area code, of principal executive offices)
Amended and Restated Wheels Up Experience Inc.
2021 Long-Term Incentive Plan
(Full title of the plan)
Laura Heltebran, Esq.
Chief Legal Officer
601 West 26th Street, Suite 900
New York, New York 10001
Telephone: (212) 257-5252
(Name and address, including zip code, and
telephone number, including area code, of agent for service)
With copies to:
Michael J. Heller, Esq.
Jeremiah G. Garvey, Esq.
Seth Popick, Esq.
Cozen O’Connor P.C.
One Liberty Place
1650 Market Street
Suite 2800
Philadelphia, Pennsylvania 19103
Telephone: (412)-620-6570
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:
| Large
accelerated filer ¨ |
Accelerated
filer ¨ |
| Non-accelerated
filer x |
Smaller
reporting company x |
| |
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 pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
Wheels
Up Experience Inc. (the “Company”) has prepared this Registration Statement in accordance with the requirements of
Form S-8 under the Securities Act of 1933, as amended (the “Securities Act”), to register additional shares of
the Company’s Class A common stock, $0.0001 par value per share (“Common Stock”), approved for issuance
under the Amended and Restated Wheels Up Experience Inc. 2021 Long-Term Incentive Plan (as amended from time to time, including pursuant
to Amendment No. 1 (as defined below), the “Plan”). On April 24, 2024, the Company filed with the U.S.
Securities and Exchange Commission (the “SEC” or the “Commission”) a definitive proxy statement
that included a proposal to adopt Amendment No. 1 to the Plan, dated April 15, 2024 (“Amendment No. 1”),
to increase the aggregate number of shares of Common Stock available for awards made under the Plan by 25,000,000 shares of Common Stock
and extend the termination date of the Plan to April 15, 2034. The proposal to adopt Amendment No. 1 was approved by the
Company’s stockholders at the Company’s 2024 annual meeting of stockholders held on June 6, 2024. This Registration
Statement registers the 25,000,000 additional shares of Common Stock available for issuance under the Plan.
The
25,000,000 additional shares of Common Stock available for issuance under the Plan registered pursuant to this Registration Statement
are the same class as those registered on (i) the Registration Statement on Form S-8, which was filed with the Commission on September 17, 2021 (File No. 333-259636) (the “2021 Registration Statement”), and (ii) the Registration Statement on Form S-8, which was filed with the Commission on June 1, 2023 (File No. 333-272347), in each case relating
to the Plan (the “2023 Registration Statement” and together with the 2021 Registration Statement, the “Prior
Registration Statements”). Pursuant to General Instruction E to Form S-8, the contents of the Prior Registration Statements,
including any amendments thereto or filings incorporated therein, are incorporated by reference except as modified, supplemented or superseded
herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified
in Items 1 and 2 of Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428
under the Securities Act and the introductory note to Part I of Form S-8. The documents containing the information specified
in this Part I will be delivered to the participants in the Plan as required by Rule 428(b)(1) under the Securities Act.
Such documents are not required to be, and are not, filed with the SEC either as part of this Registration Statement or as a prospectus
or prospectus supplement pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed
with the SEC pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
are hereby incorporated by reference in this Registration Statement:
| · | our
Current Reports on Form 8-K, filed with the SEC on February 5, 2024, March 7, 2024,
June 7, 2024, and June 7, 2024 (in each case, excluding those portions
furnished pursuant to Item 2.02 and Item 7.01 of Form 8-K, if applicable)
(File No. 001-39541); and |
All documents that the Company
subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than any portions of the respective
filings that are furnished, rather than filed, pursuant to Item 2.02 or Item 7.01 of Current Reports on Form 8-K including
exhibits related thereto or other applicable SEC rules) and prior to the filing of a post-effective amendment to this Registration Statement
indicating that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in
this Registration Statement, or in a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified
or superseded to the extent that a statement contained herein, or in any subsequently filed document that also is incorporated or deemed
to be incorporated by reference herein, modifies or supersedes such statement. Any 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 145 of the Delaware
General Corporation Law (the “DGCL”) provides that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with any threatened, pending or completed actions, suits or proceedings in which
such person is made a party by reason of such person being or having been a director, officer, employee or agent of the Company. The
DGCL provides that Section 145 is not exclusive of other rights to which those seeking indemnification may be entitled under any
bylaws, agreement, vote of stockholders or disinterested directors or otherwise. The Company’s certificate of incorporation and
bylaws provide for indemnification by the Company of its directors and officers to the fullest extent permitted by the DGCL.
Section 102(b)(7) of
the DGCL permits a corporation to provide in its certificate of incorporation that a director or officer of the corporation shall not
be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer,
except for liability (1) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for
unlawful payments of dividends or unlawful stock repurchases, redemptions or other distributions, (4) for any transaction from which
the director or officer derived an improper personal benefit or (5) for any action by or in the right of the corporation with respect
to an officer. The Company’s Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the
State of Delaware on November 15, 2023, provides for such limitation of liability to the fullest extent permitted by the DGCL.
The Company entered, and
expects to continue to enter into, indemnification agreements with its directors and executive officers. Each indemnification agreement
provides for indemnification and advancement by the Company of certain expenses and costs, if the basis of the indemnitee’s involvement
was by reason of the fact that the indemnitee is or was a director, officer, employee or agent of the Company or any of its subsidiaries
or was serving at the Company’s request in an official capacity for another entity, to the fullest extent permitted by the laws
of the state of Delaware.
The Company maintains standard
policies of insurance that provide coverage to its directors and officers against loss rising from claims made by reason of breach of
duty or other wrongful act and with respect to indemnification payments that the Company may make to such directors and officers.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
The following exhibits are filed as part of this
Registration Statement:
Exhibit
Number |
|
Description
of Documents |
| 4.1 |
|
Amended
and Restated Certificate of Incorporation of Wheels Up Experience Inc., filed on November 15, 2023 (incorporated by
reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on November 16, 2023) |
| 4.2 |
|
Amended
and Restated By-Laws of Wheels Up Experience Inc., effective as of November 15, 2023 (incorporated by reference to
Exhibit 3.2 to the Registrant's Annual Report on Form 10-K, filed with the SEC on March 7, 2024) |
| 5.1* |
|
Opinion
of Cozen O’Connor P.C. |
| 23.1* |
|
Consent
of Grant Thornton LLP, independent registered public accounting firm for Wheels Up Experience Inc. |
| 23.2* |
|
Consent
of Cozen O’Connor P.C. (included as part of Exhibit 5.1) |
| 24.1* |
|
Power
of Attorney (contained on the signature page of this registration statement) |
| 99.1 |
|
Amended
and Restated Wheels Up Experience Inc. 2021 Long-Term Incentive Plan and forms of award agreements thereunder (incorporated
by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed with the SEC on June 1, 2023) |
| 99.2 |
|
Amendment
No. 1 to Wheels Up Experience Inc. 2021 Long-Term Incentive Plan, as amended and restated April 1, 2023,
and forms of award agreements thereunder (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report
on Form 8-K, filed with the SEC on June 7, 2024) |
| 107* |
|
Filing
Fee Table |
* Filed
herewith.
| (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; |
| (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; |
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Commission 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. |
| (b) | 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 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 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 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 Commission 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 of 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 Chamblee, Georgia, on June 7, 2024.
| |
WHEELS
UP EXPERIENCE INC. |
| |
|
| |
/s/ George Mattson |
| |
Name: George Mattson |
| |
Title: Chief Executive Officer |
POWER OF ATTORNEY
KNOW
BY ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints George Mattson, Todd Smith
and Laura Heltebran, acting alone or together with another attorney-in-fact, acting as such person’s true and lawful attorney-in-fact
and agent with full and several power of substitution, for him or her and his or her name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the SEC, granting unto said attorneys-in-fact and agents, and each of them full
power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agents or any of them, or their substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed by the following persons in the capacities indicated and on the date indicated.
| Signature |
|
Capacity |
|
Date |
| |
|
|
|
|
| /s/ George Mattson |
|
Chief Executive Officer and Director |
|
June 7, 2024 |
| George Mattson |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Todd Smith |
|
Chief Financial Officer |
|
June 7, 2024 |
| Todd Smith |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Adam Zirkin |
|
Chairperson of the Board |
|
June 7, 2024 |
| Adam Zirkin |
|
|
|
|
| |
|
|
|
|
| /s/ David Adelman |
|
Director |
|
June 7, 2024 |
| David Adelman |
|
|
|
|
| |
|
|
|
|
| /s/ Timothy Armstrong |
|
Director |
|
June 7, 2024 |
| Timothy Armstrong |
|
|
|
|
| |
|
|
|
|
| /s/ Alain Bellemare |
|
Director |
|
June 7, 2024 |
| Alain Bellemare |
|
|
|
|
| |
|
|
|
|
| /s/ Adam Cantor |
|
Director |
|
June 7, 2024 |
| Adam Cantor |
|
|
|
|
| |
|
|
|
|
| /s/ Andrew Davis |
|
Director |
|
June 7, 2024 |
| Andrew Davis |
|
|
|
|
| |
|
|
|
|
| /s/ Dwight James |
|
Director |
|
June 7, 2024 |
| Dwight James |
|
|
|
|
| |
|
|
|
|
| /s/ Daniel Janki |
|
Director |
|
June 7, 2024 |
| Daniel Janki |
|
|
|
|
| |
|
|
|
|
| /s/ Thomas Klein |
|
Director |
|
June 7, 2024 |
| Thomas Klein |
|
|
|
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| |
|
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|
|
| /s/ Zachary Lazar |
|
Director |
|
June 7, 2024 |
| Zachary Lazar |
|
|
|
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| |
|
|
|
|
| /s/ Lee Moak |
|
Director |
|
June 7, 2024 |
| Lee Moak |
|
|
|
|
Exhibit 5.1
June 7, 2024
Wheels Up Experience Inc.
2135 American Way,
Chamblee, Georgia 30341
| |
Re: |
Wheels Up Experience Inc.
Registration on Form S-8 |
Ladies and Gentlemen:
We have acted as special counsel to Wheels Up Experience
Inc., a Delaware corporation (the “Company”), in connection with the preparation of the Company’s Registration
Statement on Form S-8, initially filed with the U.S. Securities and Exchange Commission (the “Commission”) on or about
the date first written above (as amended from time to time, the “Registration Statement”) under the Securities Act
of 1933, as amended (the “Securities Act”) to increase the number of shares of the Company’s Class A common stock,
par value $0.0001 per share (the “Common Stock”) available for issuance under the Wheels Up Experience Inc. 2021 Long-Term
Incentive Plan (as amended, the “Plan”) by 25,000,000 shares of Common Stock to 30,149,682 shares of Common Stock (collectively,
the “Plan Shares”) and extend the termination date of the Plan to April 15, 2034 and the related prospectus
(the “Prospectus”).
As counsel to the Company, we have examined and
are familiar with originals or copies, certified or otherwise identified to our satisfaction of the Plan; the Certificate of Incorporation
of the Company as currently in effect; the Bylaws of the Company as currently in effect; the relevant corporate proceedings of the Company;
the Registration Statement, together with the exhibits filed as part thereof or incorporated therein by reference, covering the registration
of the Plan Shares under the Securities Act; a management certificate addressed to us, dated of even date herewith and executed by the
Company, containing certain factual representations; and such other corporate records, certificates, other documents, and questions of
law as we have considered necessary or appropriate for the purposes of this opinion.
In our examination, we have assumed the legal capacity
of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such
copies. As to any facts material to this opinion 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. We have made no independent investigation or other
attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.
Based on the foregoing, and subject to the assumptions,
qualifications and limitations set forth herein, we are of the opinion that the Plan Shares have been duly authorized and when the Plan
Shares have been duly issued and delivered pursuant to the terms of the Plan and in a manner and for the consideration stated in the Registration
Statement and the Prospectus, such Plan Shares will be validly issued, fully paid and non-assessable.
We express no opinion as to the applicability or
compliance with or effect of federal law or the law of any other jurisdiction other than the General Corporation Law of the State of Delaware
(including the statutory provisions, the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting
the foregoing).
We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission. This
opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
This opinion has been prepared for your use in
connection with the issuance of the Plan Shares under the Plan, and speaks as of the date hereof. We assume no obligation to advise you
of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention, whether or not such
occurrence would affect or modify the opinions expressed herein.
It is understood that this opinion is to be used
only in connection with the issuance of the Plan Shares while the Registration Statement is in effect.
Very Truly Yours,
COZEN O’CONNOR
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We have issued our report dated March 7, 2024,
with respect to the consolidated financial statements of Wheels Up Experience Inc. included in the Annual Report on Form 10-K
for the year ended December 31, 2023, which are incorporated by reference in this Registration Statement. We consent to the
incorporation by reference of the aforementioned report in this Registration Statement.
/s/ GRANT THORNTON LLP
New York, New York
June 7, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Wheels Up Experience Inc.
(Exact Name of Registrant as Specified in its
Charter)
Table 1: Newly Registered Securities
| |
Security
Type |
Security
Class Title |
Fee
Calculation
or Carry
Forward
Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per
Unit |
Maximum
Aggregate
Offering Price |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form
Type |
Carry
Forward
File
Number |
Carry
Forward
Initial
effective
date |
Filing
Fee
Previously
Paid In
Connection
with
Unsold
Securities to be
Carried
Forward |
| Newly
Registered Securities |
Fees
to Be
Paid |
Equity |
Class
A common stock, $0.0001 par value per share |
Other |
25,000,000(1) |
$2.14(2) |
$53,500,000.00 |
.00014760 |
$7,896.60 |
-- |
-- |
-- |
-- |
Fees
Previously
Paid |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
| Carry
Forward Securities |
Carry
Forward
Securities |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
-- |
| |
Total
Offering Amounts |
|
|
|
$7,896.60 |
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
|
-- |
|
|
|
|
| |
Total
Fee Offsets |
|
|
|
-- |
|
|
|
|
| |
Net
Fee Due |
|
|
|
$7,896.60 |
|
|
|
|
| (1) |
The shares
of the Registrant’s Class A common stock, $0.0001 par value per share (“Common Stock”), registered hereby represent
an increase to the number of shares of Common Stock issuable under the Amended and Restated Wheels Up Experience Inc. 2021 Long-Term
Incentive Plan, as amended by Amendment No. 1 thereto, dated as of April 15, 2024, which was approved by the Registrant’s
stockholders at the Registrant’s 2024 annual meeting of stockholders held on June 6, 2024. In accordance with Rule
416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall
be deemed to cover any additional securities to be offered or issued from stock splits, reverse stock splits, stock dividends or
similar transactions with respect to the shares being registered. |
| (2) |
Estimated solely
for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act on the basis
of $2.14 the average of the high and low prices of a share of Common Stock as reported on the New York Stock Exchange on June 5, 2024. |
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