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8-K

Surf Air Mobility Inc. (SRFM)

8-K 2023-09-19 For: 2023-09-18
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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): September 18, 2023

SURF AIR MOBILITY INC.

(Exact name of registrant as specified in its charter)

Delaware 001-41759 36-5025592
(State<br> or other jurisdiction<br><br> of incorporation) (Commission<br> File Number) (IRS<br>Employer<br><br>Identification No.)

12111 S. Crenshaw Blvd.

Hawthorne,CA 90250

(Address of principal executive offices, including zip code)

Registrant’s

telephone number, including area code: (310) 365-3675

(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<br>communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting<br>material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement<br>communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement<br>communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class: Trading Symbol(s) Name of Each Exchange on Which Registered:
Common stock, par value $0.0001 per share SRFM 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. ☐


Item1.01 Entry into a Material Definitive Agreement.


GEMShare Subscription Facility

On February 8, 2023, Surf Air Mobility Inc., a Delaware corporation (as successor in interest to Surf Air Global Limited, a BVI business company formed under the laws of the British Virgin Islands, (“SAGL”)) (the “Company”), on the one hand, and GEM Global Yield LLC SCS, a “société en commandite simple” formed under the laws of Luxembourg (“Purchaser”) and GEM Yield Bahamas Limited, a limited company formed under the laws of the Commonwealth of the Bahamas (“GYBL,” and together with the Company and Purchaser, the “Parties”), on the other hand, entered into that certain Second Amended Share Purchase Agreement (as amended from time to time, the “Share Subscription Facility”).

The Share Subscription Facility and the equity financing commitments contemplated thereby were previously described in the Registration Statement on Form S-1 and Form S-4, originally filed with the Securities and Exchange Commission (the “SEC”) on June 5, 2023 (Registration No. 333-272403), including exhibits, and as may be subsequently amended from time to time (the “Registration Statement”), which is hereby incorporated by reference. In addition, the above-referenced description included in any prospectus relating to the Registration Statement filed with the SEC pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the “Securities Act, shall be deemed to be incorporated by reference herein.

On September 18, 2023, the Parties entered into that certain Amendment No. 4 to the Amended and Restated Share Purchase Agreement (“Amendment No. 4”). Pursuant to Amendment No. 4, among other things, (i) specifies the number of shares of Common Stock of the Company (“Shares”) required to be delivered to the escrow agent and registered for resale with the SEC in connection with any Committed Draw Down (as therein defined, and sometimes referenced to as “advances”) shall be equal to Shares having a value equal to two times the amount the applicable Committed Draw Down, (ii) establishes the first Committed Draw Down Amount shall not exceed $7,500,000 without the consent of the Purchaser, (iii) allows the Company to request other Committed Draw Downs at any time subject to a limit of $25,000,000 for each such Committed Draw Down and an aggregate limit of all Committed Draw Downs of $100,000,000, and (iv) provides that the commitment fee of 4,000,000 Shares will be payable concurrently with the first Committed Draw Down.

The foregoing summary of Amendment No. 4 does not purport to be a complete description and is qualified in its entirety by reference to the full text of Amendment No. 4, which is filed as Exhibit 10.1 to this Current Report on Form 8-K, and is incorporated herein by reference.


TextronData License Agreement

On September 18, 2023, the Company, Textron Aviation Inc. and Textron Innovations Inc. entered into a Third Amendment to Data License Agreement (the “Third Amendment”), that amends that certain data license agreement entered into on September 15, 2022 (the “DLA”).

The Third Amendment amends DLA to (i) update the license such that it becomes effective upon the payment of the first installment of the License Initiation Fee and (ii) update the License Initiation Fee such that the $25 million will be due in four installments as follows: 5.0 million on September 29, 2023, $7.5 million on December 1, 2023, $5.0 million on March 29, 2024 and $7.5 million on June 28, 2024.

The foregoing description of the Third Amendment is a summary and does not purport to be a complete description and is qualified in its entirety by reference to the full text of the Third Amendment, which is filed as Exhibit 10.2 to this Current Report on Form 8-K, and is incorporated herein by reference.

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Item3.02 Unregistered Sales of Equity Securities


The information disclosed under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02 with respect to the 4,000,000 Shares to be issued to the Purchaser as a commitment fee. Such shares are exempt from the registration requirements of the Securities Act pursuant to Section 4(a)(2) thereof and Regulation S thereunder, as applicable and are entitled to certain registration rights.


Item7.01 Regulation FD.


On September 18, 2023, Company issued a press release announcing the filing of a registration statement on Form S-1. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K.

The information furnished with this Item 7.01, including Exhibit 99.1, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference into any other filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.

The Company announces material information to its investors using filings with the Securities and Exchange Commission, the investor relations page on the Company’s website (www.surfair.com), press releases, public conference calls, and public webcasts. The information disclosed by the foregoing channels could be deemed to be material information. As such, the Company encourages investors, the media, and others to follow the channels listed above and to review the information disclosed through such channels.


Item9.01 Financial Statements and Exhibits.


(a)Exhibits.


Exhibit No. Description
10.1 Amendment No. 4 to the Amended and Restated Share Purchase Agreement
10.2 Third Amendment to Data License Agreement
99.1 Press Release issued by the Company on September 19, 2023
104 Cover Page Interactive Data File (formatted as Inline XBRL)

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SIGNATURES

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.

SURF AIR MOBILITY INC.
Date:<br> September 19, 2023 By: /s/ David Anderman
Name: David<br> Anderman
Title: Chief<br> Legal Officer

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Exhibit 10.1

AMENDMENT NO. 4

TO THE AMENDED AND RESTATED

SHARE PURCHASE AGREEMENT

This AMENDMENT NO. 4 (this “Amendment”) is made and entered into as of September 18, 2023 by and among SURF AIR MOBILITY INC., a Delaware corporation and successor to SURF AIR GLOBAL LTD., a company limited by shares formed under the laws of the British Virgin Islands and having BVI Co. No. 1915770 and a principal place of business at 12111 Crenshaw Boulevard, Hawthorne, California, 90250 (the “Company”), on the one hand, and GEM GLOBAL YIELD LLC SCS, a “société en commandite simple” formed under the laws of Luxembourg having LEI No. 213800CXBEHFXVLBZO92 having an address at 412F, Route d’Esch, L-2086 Luxembourg (“Purchaser”) and GEM YIELD BAHAMAS LIMITED, a limited company formed under the laws of the Commonwealth of the Bahamas and having an address at 3 Bayside Executive Park, West Bay Street & Blake Road, P.O. Box N-4875, Nassau, The Bahamas (“GYBL,” and together with the Company and Purchaser, the “Parties”), on the other hand, to amend that certain SECOND AMENDED AND RESTATED SHARE PURCHASE AGREEMENT, dated as of February 8, 2023, between the Company, Purchaser and GYBL (as it may be further amended from time to time, the “Purchase Agreement”). Unless otherwise specifically defined herein, each capitalized term used herein shall have the meaning assigned to such term in the Purchase Agreement.

WHEREAS, Section 9.03 of the Purchase Agreement provides for the amendment of the Purchase Agreement in accordance with the terms set forth therein;

WHEREAS, the Parties entered into Amendment No. 1 of the Purchase Agreement as of June 15, 2023, Amendment No. 2 of the Purchase Agreement as of July 20, 2023 and Amendment No. 3 of the Purchase Agreement as of July 24, 2023.

WHEREAS, the parties hereto desire to amend the Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereto do hereby agree as follows:


ARTICLE IAMENDMENTS TO PURCHASE AGREEMENT AND OTHER AGREEMENTS

Section 1.01 Amendmentto Purchase Agreement. The Purchase Agreement shall be amended as follows:

(a) The following defined terms in Section 1.01 of the Purchase Agreement are hereby deleted in their entirety and replaced with the following:

“Committed Draw Down Amount” shall mean the amount specified by the Company in the applicable Committed Draw Down Notice; provided that such amount shall not exceed $25,000,000 and the aggregate amount of all Committed Draw Downs shall not exceed $100,000,000; provided that the parties acknowledge that Committed Draw Down Amount on the First Draw Down Date shall not exceed $7,500,000, without the consent, in its sole discretion, of the Purchaser.

“Committed Draw Down Date” shall mean the date specified in the first Committed Draw Down Notice delivered to the Purchaser by the Company following satisfaction of the conditions set forth in Section 5.04 (the “First Draw Down Date”), and thereafter, the date specified by the Company (each such date, a “Subsequent Draw Down Date”), in its sole discretion, in the Committed Draw Down Notice for each such Committed Draw Down.

(b) Section 1.01 is amended by deleting the definitions of “Adjustment Date” and “Commitment Fee” in their entirety.

(c) Section 4.12 is amended by deleting it in its entirety and replacing it with the following:

Section 4.12  CommitmentFee. On the First Draw Down Date, the Company shall issue to GYBL, as a commitment fee, 4,000,000 Common Shares, free and clear of all Liens.

(d) Section 4.17 is amended by deleting “First Trading Day” from the first sentence thereof and replace it with “First Draw Down Date”:

(e) Section 6.03(b) is amended by deleting it in its entirety and replacing it with the following:

“(b) Escrow Shares. In connection with each Committed Draw Down Notice, the Company shall have deposited with the Escrow Agent, in accordance with the terms of the Escrow Agreement, and the Escrow Agent shall hold in escrow, a number of Shares equal to at least two times (2x) the value of the amount set forth in the applicable Committed Draw Down Notice (the “Transferred Shares”) based on a per-Share price equal to the closing price of the Company’s Common Shares as of the close of trading on the Trading Day immediately preceding the Committed Draw Down Date. For example, if the amount set forth in a Committed Draw Down Notice is $25,000,000 and the public listing price of the Shares on the Public Listing Date was $10 per Share, then the Company shall transfer at least 5,000,000 Common Shares to the Escrow Agent concurrently with its delivery of such Committed Draw Down Notice in respect of such Committed Draw Down. In addition, during the applicable Committed Draw Down Pricing Period (defined below), the Company may deliver additional Shares to the Purchaser (which additional Shares shall be deemed to be “Transferred Shares” for the applicable Committed Draw Down). On the business day following receipt of a Committed Draw Down Notice, Purchaser shall make payment in the amount set forth in the applicable Committed Draw Down Notice to the Company’s designated account by wire transfer of immediately available funds, provided that the Shares were deposited with the Escrow Agent in accordance with this Section 6.03(b). Notwithstanding the foregoing, with respect to the Committed Draw Down on the First Draw Down Date, the parties acknowledge and agree that maximum number of Shares that the Company shall be required to deposit with the Escrow Agent in satisfaction of this Section 6.03(b) shall be 18,700,000 Shares.”

(f) Section 6.03(f) is amended by deleting it in its entirety.

Section 1.02 AdditionalAgreements. The parties acknowledge and agree that for purposes of the Registration Rights Agreement, the term “Filing Deadline” shall mean August 3, 2023.

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ARTICLE IIMISCELLANEOUS

Section 2.01 NoFurther Amendment. The Purchase Agreement is not modified except as explicitly set forth in this Amendment.

Section 2.02 Effectof Amendment. This Amendment shall form a part of the Purchase Agreement for all purposes, and each party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the parties hereto, any reference to the Purchase Agreement shall be deemed a reference to the Purchase Agreement as amended hereby.

Section 2.03 GoverningLaw. This Amendment shall be governed by the internal laws of the State of New York, without giving effect to the choice of law provisions except Section 5-1401 of the New York General Obligations Law.

Section 2.04 Severability. The provisions of this Amendment are severable and, in the event that any court of competent jurisdiction shall determine that any one or more of the provisions or part of the provisions contained in this Amendment shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Amendment, and this Amendment shall be reformed and construed as if such invalid or illegal or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal and enforceable to the maximum extent possible.

Section 2.05 Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each Party and delivered to the other Parties hereto, it being understood that all Parties need not sign the same counterpart.

Section 2.06 Headings. The article, section and subsection headings in this Amendment are for convenience only and shall not constitute a part of this Amendment for any other purpose and shall not be deemed to limit or affect any of the provisions hereof.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

SURF AIR MOBILITY INC.
By /s/ Stan Little
--- --- ---
Name: Stan Little
Title: Chief Executive Officer

GEM GLOBAL YIELD LLC SCS
By /s/ Christopher F. Brown
--- --- ---
Name: Christopher F. Brown
Title: Manager

GEM YIELD BAHAMAS LTD.
By /s/ Christopher F. Brown
--- --- ---
Name: Christopher F. Brown
Title: Manager

[Signature Page to Amendment No. 4 to the Amended and Restated Share Purchase Agreement]

Exhibit 10.2

THIRD AMENDMENT TO

DATA LICENSE AGREEMENT


THIS THIRD AMENDMENT TO DATA LICENSE AGREEMENT (this “Amendment”) is made and entered into as of September 18, 2023 (the “Amendment Date”), by and between Textron Aviation Inc. (“TAI”) and Textron Innovations Inc. (“TII” and, together with TAI, “Licensor”), on the one hand, and Surf Air Mobility Inc. (“Licensee” and, together with Licensor, each a “Party” and collectively, the “Parties”), on the other hand, with reference to the following facts:

A. Licensor and Licensee are parties to that certain Data License Agreement dated as of September 15, 2022, as amended by that certain First Amendment to Data License Agreement dated as of May 24, 2023 and that certain Second Amendment to Data License Agreement dated as of June 30, 2023 (as amended, the “Original Agreement”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Original Agreement.

B. The Parties now wish to amend the Original Agreement in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and agreements hereinafter set forth, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

  1. Section 2.1 of the Original Agreement is hereby deleted in its entirety and replaced with the following:

“License. Subject to such other qualifications, limitations, and restrictions as are contained in this Agreement, and subject to Licensee’s timely payment to Licensor of the License Fee (as defined below) when due, Licensor hereby grants to Licensee, which grant shall be effective upon the payment by Licensee of the first instalment of the License Initiation Fee, a limited, revocable (solely on the terms set forth herein), non-exclusive, non-transferable, worldwide, license to use the Technical Information, Background Intellectual Property and the Foreground Intellectual Property (collectively, “Licensed Information”) solely for the Licensed Use (the “License”). For the avoidance of doubt, Licensee shall have no right to receive any Licensed Information prior to Licensee’s payment of the first instalment of the License Initiation Fee.”

  1. The second sentence of the paragraph captioned “License Initiation Fee” on Schedule A of the Original Agreement is hereby deleted in its entirety and replaced with the following:

“The License Initiation Fee shall be due and payable in accordance with the following schedule:

Date Amount
September 29, 2023 $ 5,000,000
December 1, 2023 $ 7,500,000
March 29, 2024 $ 5,000,000
June 28, 2024 $ 7,500,000
Total $ 25,000,000

These payments are not subject to the cure period set forth in Section 12.2(f).”

  1. Except as expressly amended herein, the terms of the Original Agreement shall remain in full force and effect and the Original Agreement is hereby ratified and confirmed. In the event of a conflict between a provision of the Original Agreement and this Amendment, the provisions of this Amendment shall control.

  2. This Amendment may be executed and delivered by facsimile, PDF or other electronic signature and in two or more counterparts, each of which shall be deemed original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the Parties hereto have duly executed this Amendment effective as of the Amendment Date.

SURF AIR MOBILITY INC.
By: /s/ Stan Little
Stan Little, CEO
TEXTRON AVIATION INC.
By: /s/ David Rosenberg
David Rosenberg
Sr. VP and CFO
TEXTRON INNOVATIONS INC.
By: /s/ James Runstadler
James Runstadler
President and Executive Director

Exhibit 99.1



Surf Air Mobility Publicly Files Form S-1 RegistrationStatement Related to Previously Announced Funding from Gem Global Yield LLC SCS


LOS ANGELES — September 19, 2023 — Surf Air Mobility Inc. (NYSE: SRFM) (“Surf Air Mobility” or “Surf Air”), a regional air mobility platform aiming to sustainably connect the world’s communities, today publicly filed a Form S-1 registration statement with the U.S. Securities and Exchange Commission (“the SEC”) registering up to 25.0 million shares to satisfy certain conditions associated with the previously disclosed share subscription facility it has entered into with Luxembourg-based Gem Global Yield LLC SCS (“GGY”).

Pursuant to the share subscription facility, upon the terms of and subject to the satisfaction of certain conditions, Surf Air Mobility will have the right from time to time at its option to direct GGY to purchase up to a specified maximum amount of shares of Surf Air Mobility common stock, up to a maximum aggregate purchase price of $400 million, over a specified term. After the initial advance of $7.5 million, Surf Air Mobility may request advances of up to $25 million each under the share subscription facility in an aggregate amount of up to $100 million. Any drawn advance will reduce amounts that Surf Air can request for future draw downs.

Surf Air Mobility intends to utilize the shares registered pursuant to the Form S-1 registration statement to request advances under the share subscription facility and satisfy other current obligations to register shares previously issued to GGY. If all the registered shares are not utilized at this time, they will remain available for future advances under the share purchase facility, to the extent such advances are requested by Surf Air Mobility. Surf Air Mobility intends to request such advances as needed and in increments aligned to the long-term growth of its business. The Form S-1 registration statement does not represent the full amount of shares that could be issued and sold to GGY under the share subscription facility.

Forward Looking Statements

The information in this press release includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements include, among other things, statements about: Surf Air Mobility’s ability to anticipate the future needs of the air mobility market; future trends in the aviation industry, generally; Surf Air Mobility’s future growth strategy and growth rate and its ability to access its financings, grow its fleet. In some cases, you can identify forward-looking statements by terminology such as “may”, “should”, “could”, “might”, “plan”, “possible”, “project”, “strive”, “budget”, “forecast”, “expect”, “intend”, “will”, “estimate”, “anticipate”, “believe”, “predict”, “potential” or “continue”, or the negatives of these terms or variations of them or similar terminology. These forward-looking statements include, without limitation, statements regarding the Company’s plans to draw down and request advances under the share subscription facility. Factors that may cause actual results to differ materially from current expectations include, but are not limited to: Surf Air Mobility’s future ability to pay contractual obligations and liquidity will depend on operating performance, cash flow and ability to secure adequate financing; Surf Air Mobility’s limited operating history and that Surf Air Mobility has not yet manufactured any hybrid-electric or fully-electric aircraft; the powertrain technology Surf Air Mobility plans to develop does not yet exist; the inability to maintain and strengthen Surf Air’s brand and its reputation as a regional airline; any accidents or incidents involving hybrid-electric or fully-electric aircraft; the inability to accurately forecast demand for products and manage product inventory in an effective and efficient manner; the dependence on third-party partners and suppliers for the components and collaboration in Surf Air Mobility’s development of hybrid-electric and fully-electric powertrains, and any interruptions, disagreements or delays with those partners and suppliers; the inability to execute business objectives and growth strategies successfully or sustain Surf Air Mobility’s growth; the inability of Surf Air Mobility’s customers to pay for Surf Air Mobility’s services; the inability of Surf Air Mobility to obtain additional financing or access the capital markets to fund its ongoing operations on acceptable terms and conditions; the outcome of any legal proceedings that might be instituted against Surf Air, Southern or Surf Air Mobility; changes in applicable laws or regulations, and the impact of the regulatory environment and complexities with compliance related to such environment; and other risks and uncertainties indicated in the prospectus. Forward-looking statements are based on the opinions and estimates of management at the date the statements are made and are subject to a variety of risks and uncertainties and other factors that could cause actual events or results to differ materially from those anticipated in the forward-looking statements. Although Surf Air Mobility believes that the expectations reflected in the forward-looking statements are reasonable, there can be no assurance that such expectations will prove to be correct. Surf Air Mobility cannot guarantee future results, level of activity, performance or achievements and there is no representation that the actual results achieved will be the same, in whole or in part, as those set out in the forward-looking statements and financial projections. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Surf Air Mobility does not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

Additional information regarding these and other factors that could affect SAM’s results is included in SAM’s SEC filings, which may be obtained by visiting the SEC’s website at www.sec.gov or the investor relations page on SAM’s website at https://investors.surfair.com under the “Financials—SEC Filings” section. Information contained on, or that is referenced or can be accessed through, our website does not constitute part of this document and inclusions of any website addresses herein are inactive textual references only.

About Surf Air Mobility


Surf Air Mobility is a Los Angeles-based regional air mobility platform expanding the category of regional air travel to reinvent flying through the power of electrification. In an effort to substantially reduce the cost and environmental impact of flying and as the operator of the largest commuter airline in the US, Surf Air Mobility intends to develop powertrain technology with its commercial partners to electrify existing fleets and bring electrified aircraft to market at scale. The management team has deep experience and expertise across aviation, electrification, and consumer technology.

For Press:

press@surfair.com


For Investors:

investors@surfair.com