Wheels Up Experience Inc.
Extract: Bylaws Amended/Restated (Plain English Desc) from a 8-K on 11/16/2023   Download
SEC Document
SEC Filing

In addition, on November 9, 2023, the Company’s Board of Directors (the “Board”) approved and adopted the Amended and Restated By-Laws of the Company, effective as of November 15, 2023 (the “A&R By-Laws”). Descriptions of the primary changes set forth in the A&R Certificate of Incorporation and A&R By-Laws are as follows:

 

A&R Certificate of Incorporation

 

·Section 4.1 of the Certificate of Incorporation was amended to increase the number of authorized shares of Common Stock from 250,000,000 to 1,500,000,000, and remove provisions related to the reverse stock split that became effective on June 7, 2023;

 

·Section 7.3 of the Certificate of Incorporation was amended to permit the Company’s stockholders to take action by written consent without the calling of a meeting of the Company’s stockholders;

 

·Article XI of the Certificate of Incorporation was amended to remove the requirement of an affirmative vote of the holders of two-thirds (2/3) of the outstanding voting shares to amend, alter, modify or repeal Article IV, Article V, Article VI, Article VII, Article VIII, Article XI or Article XII of the A&R Certificate of Incorporation; and

 

·Article XIII of the Certificate of Incorporation was amended to replace the first three references to “Article XIII” with “Certificate of Incorporation” in Article XIII of the Certificate of Incorporation to clarify that if any provision or provisions of the A&R Certificate of Incorporation shall be held to be invalid, illegal or unenforceable, the remaining provisions of the A&R Certificate of Incorporation will not be affected or impaired thereby.

 

 

 

A&R By-Laws

 

·Section 2.4 of the Amended and Restated By-Laws, effective as of December 12, 2022 (the “Prior By-Laws”), was amended to clarify that certain shares of Common Stock not entitled to vote under applicable law or by contract are not counted for purposes of determining whether a quorum is present at any meeting of the Company’s stockholders or deemed outstanding for purposes of any vote of the Corporation’s stockholders;

 

·Section 2.5 of the Prior By-Laws was amended to clarify that the list of the Company’s stockholders is required to be made available to any requesting stockholders for a period of 10 days ending on the day before the applicable stockholder meeting date;

 

·Section 2.8 of the Prior By-Laws was amended to clarify that the Company may limit the number of questions or comments posed by any stockholder at a meeting of stockholders;

 

·Section 2.9 of the Prior By-Laws was amended to reflect the Written Consent Amendment and certain other amendments intended to align with the applicable provisions of the Delaware General Corporation Law (“DGCL”);

 

·Section 3.4 of the Prior By-Laws was amended to clarify that the Lenders are not required to follow the stockholder director nomination procedures set forth in the A&R By-Laws when appointing or nominating directors or director nominees pursuant to the Amended Investor Rights Agreement and that only the Board of Directors may use a white proxy card when soliciting proxies from the Company’s stockholders;

 

·Section 3.8 of the Prior By-Laws was amended to clarify that the Company is not required to appoint a Lead Independent Director unless required by applicable law or the rules and regulations of any national securities exchange on which the Company’s securities are then listed;

 

·Section 7.4 of the Prior By-Laws related to consideration and payment for shares of capital stock was deleted in its entirety, as the provision was superfluous to the default provisions found in Section 153 of the DGCL;

 

·Section 8.3 of the Prior By-Laws was amended to clarify that any shares held by persons other than “citizens of the United States” (as defined in 49 USC § 40102(a)(15)(C)) in excess of the Permitted Percentage (as defined in the A&R By-Laws) will not be registered on the Foreign Stock Record (as defined in the A&R By-Laws);

 

·Section 9.10 of the Prior By-Laws was amended to clarify that if any provision or provisions of the A&R By-Laws is held to be invalid, illegal or unenforceable, the remaining provisions of the A&R By-Laws will not be affected or impaired thereby and such provision will be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable;

 

·Section 10.3(b) of the Prior By-Laws was amended to modernize the methods by which the Company may provide notices to the Company’s stockholders, including certain clarifications related to delivering notices by electronic mail in accordance with the DGCL; and

 

·Section 10.14 of the Prior By-Laws was amended to align more closely with the A&R Certificate of Incorporation, such that any by-laws of the Company adopted by the stockholders after the date of the A&R By-Laws will not invalidate any act of the Board that would have been valid if such By-Laws had not been adopted.

 

In addition to the amendments described above, the A&R Certificate of Incorporation and A&R By-Laws include certain immaterial changes to streamline and modernize the Certificate of Incorporation and Prior By-Laws.