As filed with the Securities and Exchange Commission on September 26, 2024
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| Registration No. 333- 199734 |
POST-EFFECTIVE AMENDMENT No. 1 to
FORM S-8
SECURITIES AND EXCHANGE COMMISSION
_________________________
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________________________
ALLEGIANT TRAVEL COMPANY
(Exact name of issuer as specified in its charter)
Nevada 20-4745737
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1201 N. Town Center Drive
Las Vegas, Nevada 89144
(Address of principal executive offices, including zip code)
_____________________________
ALLEGIANT TRAVEL COMPANY
2014 Employee Stock Purchase Plan
(Full title of the plan)
Robert Neal
Senior Vice President and Chief Financial Officer
1201 N. Town Center Drive
Las Vegas, Nevada 89144
(702) 851-7300
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Robert B. Goldberg, Esq.
Senior Vice President, Senior Counsel
Allegiant Travel Company
1201 N. Town Center Drive
Las Vegas, Nevada 89144
(702) 851-7300
________________________
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 x Accelerated filer ¨
Non-accelerated filer ¨ (Do not check if a smaller reporting company) Smaller reporting company ¨
Emerging Growth Company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
This registration statement on Form S-8 (Commission File No. 333-199734) (this “Registration Statement”) was initially filed with the Securities and Exchange Commission by Allegiant Travel Company (the “Company” or the “Registrant”) on October 30, 2014. On June 26, 2024, the stockholders of the Company approved an amendment and restatement of the Company’s 2014 Employee Stock Purchase Plan (the “Plan”) under which the term of the Plan was extended by ten (10) years until October 31, 2034, but without increasing the number of shares issuable pursuant to the Plan as the total number of shares initially authorized under the Plan exceed the total that have been issued to date under the Plan. Since no additional shares are being reserved or issued, the Company is not updating the filing fee table included in the Registration Statement as originally filed.
The Company intends for this Registration Statement to continue to apply during the extended term of the Plan as the shares to be issued under the Plan in the future will be those shares remaining unissued that have been registered under the Registration Statement as originally filed.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information.*
*In accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the instructional note to Part I of Form S-8, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 have been or will be sent or given to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act..
.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with or furnished to the Securities and Exchange Commission (the “Commission” or “SEC”) by the registrant Allegiant Travel Company (the “Company”), are incorporated herein by reference and made part of this Registration Statement:
(a)Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 29, 2024 and an amendment to the Annual Report on Form 10-K/A filed with the Commission on March 8, 2024 ;
(b)Quarterly Reports on Form 10-Q for the three months ended March 31, 2024 and June 30, 2024, filed with the SEC on May 9, 2024 and August 6, 2024, respectively;
(c)Current Reports on Form 8-K filed with the SEC on February 5, 2024 (Item 5.03 only), June 14, 2024, June 27, 2024, July 18, 2024, July 25, 2024 and September 4, 2024; and
(d)Description of the Company’s Common Stock as set forth on Form 8-A filed with the SEC on November 11, 2006 (SEC File No. 001-33166);
In addition, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained herein or in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities registered hereby has been passed on by Robert Goldberg, the Registrant’s Senior Vice President, Senior Counsel and corporate Secretary. Mr. Goldberg is eligible to participate in the Plan and owns a number of common shares of the Registrant which represents less than 0.1% of the total outstanding common shares of the Registrant. Mr. Goldberg is as an officer and employee of the Registrant.
Item 6. Indemnification of Directors and Officers.
The Company's Articles of Incorporation provide that directors of the Company will not be personally liable for damages to the Company to the fullest extent allowable by Nevada law. Under Nevada law, subject to specified exceptions (including approval of certain illegal dividends or distributions), or unless the articles of incorporation provide for greater individual liability, a director or officer is not individually liable to the company or its stockholders or creditors for any damages as a result of any act or failure to act in his capacity as a director or officer other than in circumstances where both (a) the presumption that the director or officer acted in good faith, on an informed basis and with a view to the interests of the corporation has been rebutted, and (b) the act or failure to act of the director or officer is proven to have been a breach of his or her fiduciary duties as a director or officer and such breach is proven to have involved intentional misconduct, fraud or a knowing violation of law. In appropriate circumstances, equitable remedies or non-monetary relief, such as an injunction, may remain available to a stockholder seeking redress from any such violation.
The Company also has the obligation, pursuant to Article Ten of the Company's By-Laws and under certain indemnification agreements, to indemnify any officer or director of the Company for all expenses actually and reasonably incurred by them in connection with any legal action brought or threatened against such person for or on account of any action or omission alleged to have been committed because such person was an officer or director, if the person acted in good faith and in a manner which the person believed to be in, or believed was not opposed to, the best interests of the Company and, with respect to criminal actions, such person had no reasonable cause to believe his conduct was unlawful; provided that such indemnification shall not be made if a final adjudication establishes such person's acts or omissions involved intentional misconduct, fraud, or a knowing violation of law and was material to the cause of action. The Company also maintains liability insurance for its directors and officers in order to limit its exposure to liability for indemnification of such persons.
These provisions may be held not to be enforceable for certain violations of the federal securities laws of the United States.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
*Filed herewith.
Item 9. Undertakings.
(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 this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 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 this Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the 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; and
(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 liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed 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.
(h) 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 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 of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Las Vegas, State of Nevada, on this 26th day of September, 2024.
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| ALLEGIANT TRAVEL COMPANY |
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| By: | /s/ Robert Neal |
| | Senior Vice President and Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature to this Registration Statement appears below hereby constitutes and appoints each of Robert Neal and Robert Goldberg as such person’s true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any and all amendments to the Registration Statement, including post-effective amendments, and registration statements filed pursuant to Rule 462 under the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, and does hereby grant unto each said attorney-in-fact and agent 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 such person might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and agent, or any substitute therefor, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 26th day of September, 2024.
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| SIGNATURE | | TITLE |
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/s/ Gregory C. Anderson | | President and Chief Executive Officer (Principal Executive Officer) and Director |
| Gregory C. Anderson | | |
| | |
| /s/ Robert Neal | | Chief Financial Officer (Principal Financial Officer) |
Robert Neal | | |
| | |
| /s/ Rebecca Aretos | | Principal Accounting Officer |
Rebecca Aretos | | |
| | |
| /s/ Maurice J. Gallagher, Jr. | | Chairman of the Board |
Maurice J. Gallagher, Jr. | | |
| | |
| | Director |
Montie Brewer | | |
| | |
| /s/ Gary Ellmer | | Director |
Gary Ellmer | | |
| | |
| /s/ Ponder Harrison | | Director |
Ponder Harrison | | |
| | |
| /s/ Linda Marvin | | Director |
Linda Marvin | | |
| | |
| /s/ Sandra Morgan | | Director |
Sandra Morgan | | |
| | |
| /s/ Charles Pollard | | Director |
Charles Pollard | | |
September 26, 2024
Allegiant Travel Company
1201 N. Town Center Drive
Las Vegas, Nevada 89144
Re: Allegiant Travel Company Registration Statement on Form S-8
Gentlemen:
At your request, I have examined the Registration Statement on Form S-8 (the “Registration Statement”) filed by Allegiant Travel Company, a Nevada corporation (the "Company"), with the Securities and Exchange Commission (the “Commission”) with respect to the registration under the Securities Act of 1933, as amended (the “Securities Act”), of up to 1,000,000 shares (the “Shares”) of Common Stock, $0.001 par value per share, of the Company issuable by the Company under the Company’s 2014 Employee Stock Purchase Plan as amended and restated effective as of November 1, 2024 (the “Plan”).
As your counsel, and in connection with the preparation of the Registration Statement, I have examined the originals or copies of the Company’s Articles of Incorporation and By-laws (as amended to date), such other documents and corporate records relating to the authorization and issuance of the Shares as I deemed relevant or necessary for the opinion herein expressed. In such examination, I have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as certified, conformed or photostatic copies, and the authenticity of the originals of such latter documents. I have also assumed that the Shares will remain reserved for issuance under the Plan until actually issued thereunder.
Upon the basis of the foregoing, it is my opinion that the Shares, when issued in accordance with the Plan, will be validly issued, fully paid and nonassessable.
I hereby consent to the use of this opinion as an exhibit to the Registration Statement pursuant to Item 601(b)(5) of Regulation S-K under the Securities Act and I further consent to the use of my name in the “Legal Matters” section of the Registration Statement, including the prospectus constituting a part thereof, and any amendments thereto. In giving such consent, I do not hereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
The opinion expressed herein is based on the facts in existence and the laws in effect on the date hereof and is limited to the Federal securities laws and the laws of the State of Nevada currently in effect.
Allegiant Travel Company
September 26, 2024
Page 2 of 2
The opinions expressed herein are matters of professional judgment and are not a guarantee of result. This opinion is limited to the matters stated herein, and no opinion or belief is implied or may be inferred beyond the matters expressly stated herein. The opinions expressed herein are rendered as of the date hereof, and I disclaim any undertaking to advise you of changes in law or fact which may affect the continued correctness of this opinion as of a later date.
Very truly yours,
/s/ Robert B. Goldberg
ROBERT B. GOLDBERG
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated February 29, 2024, with respect to the consolidated financial statements of Allegiant Travel Company, and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
Dallas, Texas
September 26, 2024
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