UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 7, 2023
WHEELS UP EXPERIENCE INC.
(Exact name of registrant as specified in its charter)
| Delaware | 001-39541 | 98-1617611 |
| (State or other jurisdiction | (Commission | (I.R.S. Employer |
| of incorporation) | File Number) | Identification No.) |
| 601 West 26th Street, Suite 900 | |
| New York, New York | 10001 |
| (Address of principal executive offices) | (Zip Code) |
(212) 257-5252
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
| Class A common stock, par value $0.0001 per share | UP | New York Stock Exchange | ||
| Redeemable warrants, each warrant exercisable for 1/10 of one share of Class A common stock at an exercise price of $115.00 per whole share of Class A common stock | UP WS | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
As previously announced, following the 2023 annual meeting of stockholders of Wheels Up Experience Inc. (the “Company” or “Wheels Up”) held on May 31, 2023 (the “Annual Meeting”), the Board of Directors of the Company (the “Board”) approved a Reverse Stock Split (as defined below) that became effective immediately after the close of trading on The New York Stock Exchange (the “NYSE”) on June 7, 2023 (the “Effective Time”). In connection with such Reverse Stock Split, the Company, in its capacity as the managing member of Wheels Up Partners Holdings LLC, a Delaware limited liability company and direct subsidiary of the Company (“WUPH”), entered into Amendment No. 2 to Seventh Amended and Restated Limited Liability Company Agreement of Wheels Up Partners Holdings LLC, dated as of June 7, 2023 (the “WUPH Agreement Amendment”), to, among other things, update certain provisions to reflect adjustments to outstanding and issuable membership interests in WUPH as a result of the Reverse Stock Split.
The foregoing summary of the WUPH Agreement Amendment does not purport to be complete and is qualified in its entirety by reference to the WUPH Agreement Amendment, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 3.03 | Material Modification to Rights of Security Holders. |
In connection with the Reverse Stock Split, and pursuant to the terms of the Warrant Agreement, dated as of September 25, 2020 (the “Warrant Agreement”), by and between Aspirational Consumer Lifestyle Corp., a blank check company and the predecessor in-interest to Wheels Up (“Aspirational”), and Continental Stock Transfer & Trust Company, as warrant agent, the exercise and redemption terms of the Company’s issued and outstanding redeemable public warrants (the “Public Warrants”) and private placement warrants (together with the Public Warrants, the “Warrants”) to purchase shares of Wheels Up Class A common stock, par value $0.0001 per share (“Common Stock”), were adjusted to reflect: (i) a reduction in the number of shares of Common Stock issuable upon exercise of each Warrant, which resulted in each Warrant being exercisable for 1/10th of a share of Common Stock; (ii) an increase in the exercise price per whole share of Common Stock to $115.00; and (iii) the stated redemption prices per Warrant being proportionately reduced. All Warrants issued and outstanding prior to the Effective Time remain outstanding, and the Public Warrants continue to be traded on the NYSE under the ticker symbol “UP WS” with the same CUSIP and ISIN numbers. The Company does not intend to amend the terms of the Warrant Agreement to reflect the corresponding adjustments as a result of the Reverse Stock Split.
The foregoing description of the Warrant Agreement does not purport to be complete and is qualified in its entirety by reference to the Warrant Agreement, which was originally filed as Exhibit 4.1 to Aspirational’s Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (“SEC”) on September 25, 2020 and is incorporated herein by reference. In addition, the information provided in Item 5.03 (Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year) below is incorporated by reference into this Item 3.03.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
As previously announced, at the Annual Meeting, the Company’s stockholders approved an amendment to the Company’s Certificate of Incorporation to effect, at the discretion of the Board at any time prior to the first anniversary of the Annual Meeting, (i) a reverse stock split of Wheels Up’s outstanding shares of Common Stock, at a reverse stock split ratio of not less than 1-for-5 and not greater than 1-for-10, with an exact ratio within that range as may be determined by the Board at a later date (the “Reverse Stock Split”) and (ii) contemporaneously with the Reverse Stock Split, a reduction in the number of authorized shares of Common Stock by a ratio corresponding to the reverse stock split ratio (the “Authorized Share Reduction” and, together with the Reverse Stock Split, the “Reverse Stock Split Amendment”). Following receipt of stockholder approval of the Reverse Stock Split Amendment at the Annual Meeting, on May 31, 2023, the Board approved the Reverse Stock Split at a ratio of 1-for-10 shares of Common Stock (the “Reverse Stock Split Ratio”), together with a proportionate reduction in the number of authorized shares of Common Stock from 2.5 billion shares of Common Stock to 250 million shares.
The Company amended the Company’s existing Certificate of Incorporation, dated as of July 13, 2021 (the “Prior Certificate”), to implement the Reverse Stock Split Amendment by filing the Certificate of Amendment to Certificate of Incorporation (the “Certificate of Amendment”) with the Secretary of State of the State of Delaware on June 7, 2023, which became effective immediately after the close of trading on the NYSE on June 7, 2023. To implement the Reverse Stock Split Amendment, Section 4.1 of the Prior Certificate was amended to (i) reduce the total number of shares of all classes of capital stock and Common Stock of the Company authorized for issuance to 275 million and 250 million, respectively, taking into account the Reverse Stock Split and Authorized Share Reduction based on the Reverse Stock Split Ratio, and (ii) clarify the treatment of any fractional shares of Common Stock upon the effectiveness of the Reverse Stock Split.
The foregoing summary of the Certificate of Amendment does not purport to be complete and is qualified in its entirety by reference to the Certificate of Amendment, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference.
Forward-Looking Statements
This Current Report on Form 8-K contains certain “forward-looking statements” within the meaning of the federal securities laws. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to known and unknown risks, uncertainties, assumptions and other important factors, many of which are outside of the control of Wheels Up that could cause actual results to differ materially from the results discussed in the forward-looking statements. These forward-looking statements include, but are not limited to, statements regarding the expectations, hopes, beliefs, intentions or strategies of Wheels Up regarding the future, including, without limitation, statements regarding: (i) the impact of the Reverse Stock Split and Authorized Share Reduction on the trading market for the Company’s Common Stock and Warrants, including the trading price, liquidity, trading volume, volatility and marketability of the Common Stock and Warrants after the Reverse Stock Split; (ii) public perception of the Reverse Stock Split and Authorized Share Reduction in light of the history of reverse stock splits for other companies and the potential impacts on the trading market or price of the Common Stock and Warrants; (iii) the likelihood that the Reverse Stock Split will result in any permanent increase in the trading price per share of Common Stock or price per Warrant; and (iv) whether or not the Reverse Stock Split will cure any deficiency under, and allow the Company to regain compliance with, Section 802.01C of the NYSE Listed Company Manual. The words “anticipate,” “believe,” continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “strive,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that statement is not forward-looking. These forward-looking statements are subject to a number of risks, uncertainties and assumptions that could cause actual events and results to differ materially from those contained in such forward-looking statements. Factors that could cause actual results to differ materially from those expressed or implied in forward-looking statements can be found in Wheels Up’s Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 31, 2023 and Wheels Up’s other filings with the SEC. Moreover, Wheels Up operates in a very competitive and rapidly changing environment. New risks and uncertainties arise from time to time, and it is impossible for us to predict these events or how they may affect us. You are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made, and Wheels Up undertakes no obligation to update or revise the forward-looking statements, whether as a result of new information, changes in expectations, future events or otherwise. Although Wheels Up believes that the expectations reflected in the forward-looking statements are reasonable, Wheels Up cannot guarantee future results, levels of activity, performance or achievements. Except as required by law, Wheels Up does not intend to update any of these forward-looking statements after the date of this Current Report on Form 8-K or to conform these statements to actual results or revised expectations.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| WHEELS UP EXPERIENCE INC. | |||
| Date: June 8, 2023 | By: | /s/ Todd Smith | |
| Name: | Todd Smith | ||
| Title: |
Interim Chief Executive Officer and Chief Financial Officer | ||
Exhibit 3.1
Execution Version
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
WHEELS UP EXPERIENCE INC.
PURSUANT TO SECTION 242 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
June 7, 2023
Wheels Up Experience Inc., a corporation organized under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:
| 1. | The name of the Corporation is “Wheels Up Experience Inc.” |
| 2. | The Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on July 13, 2021. |
| 3. | This Certificate of Amendment to the Certificate of Incorporation of the Corporation amends the existing Certificate of Incorporation of the Corporation, effective immediately after the close of trading on The New York Stock Exchange on June 7, 2023 (the “Effective Time”). |
| 4. | The amendment set forth in this Certificate of Amendment to Certificate of Incorporation was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. |
| 5. | The text of Section 4.1 of the Certificate of Incorporation is amended in its entirety and shall be replaced with the following, effective as of the Effective Time: |
Section 4.1 Authorized Capital Stock.
(a) The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue, is 275,000,000 shares, consisting of (i) 250,000,000 shares of Class A common stock (“Class A Common Stock”), and (ii) 25,000,000 shares of preferred stock (“Preferred Stock”). The number of authorized shares of Class A Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares of such class or series thereof then outstanding) by the affirmative vote of the holders of capital stock representing a majority of the voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of Class A Common Stock or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holder is required pursuant to this Certificate of Incorporation (this “Certificate of Incorporation”) or any Preferred Stock Designation (as defined below) designating a series of Preferred Stock.
(b) Immediately after the close of trading on The New York Stock Exchange (the “NYSE”) on June 7, 2023 (the “Effective Time”), each 10 shares of Class A Common Stock issued and outstanding or held by the Corporation in treasury immediately prior to the Effective Time will be reclassified and combined into one issued, fully paid and nonassessable share of Class A Common Stock, without any action required on the part of the Corporation or the holders of such Class A Common Stock. In addition, the number of authorized shares of Class A Common Stock shall be contemporaneously reduced proportionally such that the total number of authorized shares of capital stock and Class A Common Stock shall be as set forth in Section 4.1(a) hereof. No fractional shares of Class A Common Stock will be issued in connection with the reclassification and combination of shares of Class A Common Stock pursuant to this Section 4.1(b). Stockholders who otherwise would be entitled to receive fractional shares of Class A Common Stock shall be entitled to receive cash (without interest) from the Corporation’s transfer agent in lieu of such fractional shares. Any such stockholder who otherwise would be entitled to receive fractional shares that holds Class A Common Stock (i) in book-entry form shall submit a transmission letter to the Corporation’s transfer agent to receive payment in lieu of receipt of fractional shares, (ii) in certificated form, if any, shall receive payment in lieu of receipt of fractional shares upon the surrender of the stockholder’s certificates that immediately prior to the Effective Time represented shares of Class A Common Stock (“Old Certificates”) to the Corporation’s transfer agent, or (iii) in another uncertificated form either registered in such stockholder’s own name or through a broker or other nominee will receive payment from Corporation’s transfer agent in lieu of receipt of fractional shares, in each case such payment to be in an amount equal to the product obtained by multiplying (y) the closing price per share of the Class A Common Stock as reported on the NYSE as of the Effective Time, as adjusted by the applicable reverse stock split ratio described in the first sentence of this Section 4.1(b), by (z) the fraction of one share owned by such stockholder taking into account the reverse stock split. Each Old Certificate shall thereafter represent that number of shares of Class A Common Stock into which the shares of Class A Common Stock represented by the Old Certificate shall have been combined, subject to the treatment of any fractional shares as described above.
(Signature Page Follows; Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to Certificate of Incorporation to be duly executed and acknowledged in its name and on its behalf by the undersigned as of the date first set forth above.
| WHEELS UP EXPERIENCE INC. | |||
| By: | /s/ Todd Smith | ||
| Name: | Todd Smith | ||
|
Title: |
Interim Chief Executive Officer and Chief Financial Officer | ||
Signature Page
to
Certificate of Amendment
to
Certificate of Incorporation
of
Wheels Up Experience Inc.
Exhibit 10.1
Execution Version
AMENDMENT NO. 2
TO
SEVENTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This AMENDMENT NO. 2 (this “Amendment”) to the Seventh Amended and Restated Limited Liability Company Agreement, dated as of July 13, 2021 (as amended by Amendment No. 1 thereto, dated as of April 1, 2022, the “LLC Agreement”), of Wheels Up Partners Holdings LLC, a Delaware limited liability company (the “Company”), is entered into as of June 7, 2023, by and among the Company and Wheels Up Experience Inc., a Delaware corporation (the “Managing Member”). Except as otherwise provided herein, capitalized terms used herein shall have the meanings set forth in the LLC Agreement.
WHEREAS, on May 31, 2023, the stockholders of PubCo approved at the 2023 annual meeting of stockholders of PubCo (the “2023 Annual Meeting”) a voting proposal to authorize the Board to effect at any time prior to the first anniversary of the 2023 Annual Meeting, (i) a reverse stock split of PubCo’s outstanding shares of Class A Common Stock at a reverse stock split ratio of not less than 1-for-5 and not greater than 1-for-10, with an exact ratio within that range as may be determined by the Board at a later date (the “Reverse Stock Split”) and (ii) contemporaneously with the Reverse Stock Split, a reduction in the number of authorized shares of Class A Common Stock by a ratio corresponding to the reverse stock split ratio (the “Authorized Share Reduction”);
WHEREAS, on May 31, 2023 after the 2023 Annual Meeting was adjourned, the Board approved an amendment to PubCo’s Certificate of Incorporation to, among other things, effect the Reverse Stock Split at a reverse stock split ratio of 1-for-10, and to contemporaneously effect the Authorized Share Reduction, in each case effective immediately after the close of trading on The New York Stock Exchange on June 7, 2023 by filing an Amended and Restated Certificate of Incorporation of PubCo with the Secretary of State of the State of Delaware at or prior to such time;
WHEREAS, pursuant to Section 4.1(i) of the LLC Agreement, PubCo shall not in any manner effect any subdivision (by any equity split, equity distribution, reclassification, recapitalization or otherwise) or combination (by reverse equity split, reclassification, recapitalization or otherwise) of the outstanding PubCo Common Stock or any other class or series of Equity Security of PubCo, unless accompanied by an identical subdivision or combination, as applicable, of the outstanding Units or other related class or series of Equity Security of the Company, with corresponding changes made with respect to any applicable exchangeable or convertible Equity Securities of the Company and PubCo; and
WHEREAS, the Company and Managing Member desire to enter into this Amendment to amend the LLC Agreement pursuant to Section 12.1(b) thereof to effect an identical combination of the outstanding Units and Equity Securities of the Company with corresponding changes made to the Class A Common Stock as a result of the Reverse Stock Split.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Amendments to LLC Agreement.
a. The following definitions of “PubCo Reverse Stock Split,” “PubCo RSS Ratio” and “PubCo RSS Effective Time” are each hereby added in their entirety to Section 1.1 of the LLC Agreement as follows:
““PubCo Reverse Stock Split” means the reverse stock split of the issued shares of Class A Common Stock (including issued and outstanding shares and treasury stock) at the PubCo RSS Ratio and contemporaneously therewith, a corresponding reduction in the number of authorized shares of Class A Common Stock by the PubCo RSS Ratio, in each case effective as of the PubCo RSS Effective Time.”
““PubCo RSS Ratio” means 1-for-10.”
““PubCo RSS Effective Time” means immediately after the close of trading on The New York Stock Exchange on June 7, 2023.”
b. The definition of “First Tier Vesting Event” set forth in Section 1.1 of the LLC Agreement is hereby deleted in its entirety and replaced as follows:
““First Tier Vesting Event” means the occurrence of (i) the “First Earnout Achievement Date” under the Merger Agreement or (ii) the events described in Section 3.4(e)(i) of the Merger Agreement, in each case, subject to the provisions and limitations set forth in Section 3.4 of the Merger Agreement and, effective as of the PubCo RSS Effective Time, as equitably adjusted to reflect the PubCo Reverse Stock Split and the corresponding treatment of fractional Units, interests and shares, as applicable, as determined by the Board.”
c. The definition of “Full Vesting Event” set forth in Section 1.1 of the LLC Agreement is hereby deleted in its entirety and replaced as follows:
““Full Vesting Event” means, with respect to all EO Units, the occurrence of the events described in Section 3.4(e)(iii) of the Merger Agreement, in each case, as of the PubCo RSS Effective Time, as equitably adjusted to reflect the PubCo Reverse Stock Split and the corresponding treatment of fractional Units, interests and shares, as applicable, as determined by the Board.”
d. The definition of “Hurdle Amount” set forth in Section 1.1 of the LLC Agreement is hereby deleted in its entirety and replaced as follows:
““Hurdle Amount” means, for each Series of PI Unit issued and outstanding and held by MIP LLC as of the PubCo RSS Effective Time, the Hurdle Amount per PI Unit set forth on Schedule A. For purposes of this definition, the term “PI Units” shall include (and such PI Units shall be treated as a continuation of) each Series of Profits Interests that were issued to MIP LLC prior to the date hereof and which were converted to a corresponding Series of PI Units pursuant to the Merger Agreement.”
e. The definition of “Minimum Exchange Amount” set forth in Section 1.1 of the LLC Agreement is hereby deleted in its entirety and replaced as follows:
““Minimum Exchange Amount” means the lesser of (a) 500 Vested Units and (b) all of the Vested Units then held by the applicable Exchange Member.”
2
f. The definition of “Second Tier Vesting Event” set forth in Section 1.1 of the LLC Agreement is hereby deleted in its entirety and replaced as follows:
““Second Tier Vesting Event” means the occurrence of (i) the “Second Earnout Achievement Date” under the Merger Agreement or (ii) the events described in Section 3.4(e)(ii) of the Merger Agreement, in each case, subject to the provisions and limitations set forth in Section 3.4 of the Merger Agreement and, effective as of the PubCo RSS Effective Time, as equitably adjusted to reflect the PubCo Reverse Stock Split and the corresponding treatment of fractional Units, interests and shares, as applicable, as determined by the Board.”
g. The definition of “Third Tier Vesting Event” set forth in Section 1.1 of the LLC Agreement is hereby deleted in its entirety and replaced as follows:
““Third Tier Vesting Event” means the occurrence of (i) the “Third Earnout Achievement Date” under the Merger Agreement or (ii) the events described in Section 3.4(e)(iii) of the Merger Agreement, in each case, subject to the provisions and limitations set forth in Section 3.4 of the Merger Agreement and, effective as of the PubCo RSS Effective Time, as equitably adjusted to reflect the PubCo Reverse Stock Split and the corresponding treatment of fractional Units, interests and shares, as applicable, as determined by the Board.”
h. Article III of the LLC Agreement is hereby deleted in its entirety and replaced as follows:
“Article III.
PUBCO REVERSE STOCK SPLIT
Section 3.1 Equitable Adjustments Resulting From PubCo Reverse Stock Split. For purposes of this Agreement, effective as of the PubCo RSS Effective Time, it is the intention of the parties hereto that any outstanding class or series of Units or interests of the Company, MIP LLC or MIP RI LLC reflect all necessary equitable adjustments as a result of the PubCo Reverse Stock Split, as closely as possible and in each case with respect to the number of Units or interests or Hurdle Amount or other exercise, hurdle, strike, vesting or other similar price, and to preserve the intended economic value for such Units or interests, such that as of the PubCo RSS Effective Time, among other things:
| (a) | the number of Common Units shall be deemed to have been reduced by the PubCo RSS Ratio in the same manner as such reduction occurred for the outstanding Class A Common Stock, including with respect to the treatment of fractional shares of Class A Common Stock as determined by the Board; |
| (b) | any number of outstanding Units or interests other than Common Units, whether vested or unvested, shall be deemed to have been reduced by the PubCo RSS Ratio and, with respect to any outstanding PI Units, Restricted Interests and EO Units (except to the extent vested and exchanged for shares of Class A Common Stock prior to the PubCo RSS Effective Time), shall be reduced to reflect the corresponding treatment of fractional Units, interests and shares, as applicable, as determined by the Board; |
3
| (c) | with respect to the EO Units and any related defined terms used herein which are as set forth in the Merger Agreement and/or Sections 3.3(b), 3.3(c) and 3.4 of the Merger Agreement, effective as of the PubCo RSS Effective Time: |
| (i) | any number of Wheels Up EO Units (as defined in the Merger Agreement) issuable shall be reduced by the PubCo RSS Ratio, including such Wheels Up EO Units referred to in Section 3.3(b), 3.3(c) and 3.4 of the Merger Agreement; |
| (ii) | for purposes of determining “Effective Time Company Fully Diluted Shares” for any calculation, such “Effective Time Company Fully Diluted Shares” shall be reduced by the PubCo RSS Ratio and further reduced to reflect the corresponding treatment of fractional Units, interests and shares, as applicable, as determined by the Board; |
| (iii) | for purposes of calculating “First Earnout Fully Diluted Shares”, “Second Earnout Fully Diluted Shares” and “Third Earnout Fully Diluted Shares”, any fractional PI Units or Restricted Interests forfeited or cancelled as a result of the PubCo Reverse Stock Split due to the corresponding treatment of fractional Units, interests and shares, as applicable, as determined by the Board, shall reduce such number shares; and |
| (iv) | any minimum VWAP (as defined in the Merger Agreement) dollar threshold with respect to the “First Earnout Achievement Date,” “Second Earnout Achievement Date” and “Third Earnout Achievement Date” shall be deemed to have been increased as follows: (y) the applicable minimum VWAP dollar threshold, multiplied by (z) the inverse of the PubCo RSS Ratio (i.e., 10:1).” |
i. Schedule A to the LLC Agreement is hereby deleted and replaced in its entirety with Schedule A attached hereto.
j. Exhibit A of the LLC Agreement is hereby deleted and replaced in its entirety with Exhibit A attached hereto.
2. LLC Agreement. Except as provided herein, the LLC Agreement remains in full force and effect and is ratified in all respects. On and after the effectiveness of this Amendment, each reference in the LLC Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference to the LLC Agreement in any other agreements, documents or instruments executed and delivered pursuant to the LLC Agreement shall mean and be a reference to the LLC Agreement, as amended by this Amendment.
3. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. No Party shall raise the use of email or other electronic transmission to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of email or other electronic transmission as a defense to the formation or enforceability of a contract and each Party forever waives any such defense.
4. Governing Law. This Amendment and all claims or causes of action based upon, arising out of, or related to this Amendment or the matters contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.
(Remainder of page left intentionally blank)
4
IN WITNESS WHEREOF, the parties have entered into this Amendment No. 2 as of the date first above written.
| COMPANY: | |||
| WHEELS UP PARTNERS HOLDINGS LLC | |||
| By: | /s/ Todd Smith | ||
| Name: | Todd Smith | ||
| Title: | Chief Financial Officer | ||
| MANAGING MEMBER: | |||
| WHEELS UP EXPERIENCE INC. | |||
| By: | /s/ Todd Smith | ||
| Name: | Todd Smith | ||
| Title: | Interim Chief Executive Officer and Chief Financial Officer | ||
Signature Page to
Amendment No. 2 to
Seventh Amended and Restated Limited Liability Company Agreement of
Wheels Up Partners Holdings LLC
Schedule A
HURDLE AMOUNTS
(As Adjusted to Reflect the PubCo Reverse Stock Split)
| PI Unit Series | Hurdle
Amount* ($ per PI Unit) |
| Series 1, 2, 2A | 21.80 |
| Series 3 | 29.70 |
| Series 4 | 54.90 |
| Series 5 | 65.00 |
| Series 6, 7 | 70.40 |
| Series 8, 9, 10 | 75.60 |
| Series 11 | 83.80 |
| Series 12 | 86.90 |
* Hurdle Amounts in the table above reflect the Hurdle Amount as of the Effective Time, multiplied by the inverse of the PubCo RSS Ratio, and rounded down to the nearest whole cent.
Exhibit A
MEMBERS
| 1. | Effective Time Common Units, PI Units and EO Units (as adjusted to reflect the PubCo Reverse Stock Split):* |
| Name | Common Units | PI Units | EO Units | Address |
| Wheels Up Experience Inc. | 16,792,318 | 601 West 26th Street New York, NY 10001 | ||
| Wheels Up Blocker Sub LLC | 7,728,956 | 601 West 26th Street New York, NY 10001 | ||
| Wheels Up MIP LLC | 2,904,233 (see below for Series and Hurdle Amounts) |
128,925 | 601 West 26th Street New York, NY 10001 | |
| Wheels Up MIP RI LLC | 20,698 | 601 West 26th Street New York, NY 10001 |
| 2. | PI Units by Series, with corresponding Hurdle Amount (as adjusted to reflect the PubCo Reverse Stock Split):* |
| PI Unit Series | Hurdle
Amount** ($ per PI Unit) |
Number of PI Units |
| Series 1, 2, 2A | 21.80 | 362,900 |
| Series 3 | 29.70 | 67,790 |
| Series 4 | 54.90 | 303,282 |
| Series 5 | 65.00 | 541,589 |
| Series 6, 7 | 70.40 | 629,681 |
| Series 8, 9, 10 | 75.60 | 843,150 |
| Series 11 | 83.80 | 137,426 |
| Series 12 | 86.90 | 18,415 |
* Unit counts in Tables 1 and 2 above reflect adjustments as a result of the PubCo Reverse Stock Split and rounding down to the nearest whole Unit, which represents the maximum number of Units that could have been issued and outstanding as of the Effective Time taking into account the PubCo Reverse Stock Split. The Company’s internal records will be updated to reflect the actual number of issued and outstanding Common Units, PI Units and EO Units as of the PubCo RSS Effective Time, including to reflect any issuances, cancellations or forfeitures of Units or interests prior to or as of the PubCo RSS Effective Time.
** Hurdle Amounts in the Table 2 above reflect the Hurdle Amount as of the Effective Time, multiplied by the inverse of the PubCo RSS Ratio, and rounded down to the nearest whole cent.