425

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): October 11, 2022

Horizon Acquisition Corporation II

(Exact name of registrant as specified in its charter)

Cayman Islands	001-39631	98-1553406
(State or other jurisdiction of incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

600 Steamboat Road, Suite 200 Greenwich, CT	06830
(Address of principal executive offices)	(Zip Code)

(203) 298-5300

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

x  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
Units, each consisting of one Class A Ordinary Share, $0.0001 par value, and one-third of one redeemable Warrant	HZON.U	New York Stock Exchange
Class A Ordinary Shares	HZON	New York Stock Exchange
Redeemable warrants, each whole warrant exercisable for one Class A Ordinary Share at an exercise price of $11.50	HZON 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 x

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.

Business Combination Agreement

On October 11, 2022, Horizon Acquisition Corporation II, a Cayman Islands exempted company (“Horizon”), entered into a Business Combination Agreement (the “BCA”), pursuant to which Horizon will engage in a business combination transaction with Epic Aero, Inc., a Delaware corporation (“Epic”). Epic owns and operates the private aviation business known as Flexjet, among other business activities. The public company ultimately resulting from the completion of the Business Combination will be Flexjet, Inc. (“Flexjet”). Flexjet will have one class of common stock, par value $0.0001 per share (the “Flexjet Common Stock”), outstanding at the Closing (as defined below).

The Business Combination (as defined below) values Flexjet at a pro forma enterprise value of approximately $3.1 billion. At the Closing and assuming full (i) non-redemption of the $155,000,000 of Horizon Class Stock held by Horizon II Sponsor, LLC (“Sponsor”) and (ii) utilization of an up to $145,000,000 investment provided by Eldridge Industries, LLC (“Eldridge”) pursuant to the Back-Stop Letter Agreement (as defined below), existing Flexjet shareholders (which includes affiliates of Eldridge who are current investors in Flexjet) are expected to own 89% of Flexjet. See “Certain Related Agreements – Sponsor Support Agreement” and “Certain Related Agreements – PIPE Investment and Back-Stop Letter Agreement” below. In the event there are fewer redemptions from Horizon’s trust account, such ownership percentage would be reduced by existing Horizon public shareholders.

The parties to the BCA are:

· Horizon;

· Epic;

· OTH Merger Sub 1, LLC, a Delaware limited liability company (“Merger Sub 1”) and a wholly owned subsidiary of Horizon formed in connection with the BCA;

· Flexjet; and

· Flexjet Sub, LLC, a Delaware limited liability company (“Merger Sub 2”) and a wholly owned subsidiary of Flexjet formed in connection with the BCA.

A to-be-formed Delaware corporation (“Combined TargetCo”) is expected to combine the Epic business after giving effect to certain planned acquisition and disposition transactions prior to the Closing. It is expected to become a party to the BCA by joinder.

Each of Horizon, Merger Sub 1, Flexjet, Merger Sub 2, Epic and Combined TargetCo is referred to herein as a “Party”.

The BCA and the transactions contemplated thereby were approved by the boards of directors of each of Horizon, Merger Sub 1, Flexjet and Epic, the sole member of Merger Sub 1 and the managers of Merger Sub 2.

The Business Combination Transactions

The BCA provides for the following, in each case upon the terms and subject to the conditions of the BCA:

The Redomestication

The day immediately prior to the Business Combination Merger (as defined below), Horizon will engage in a redomestication transaction (the “Redomestication”). In the Redomestication, all of the shareholders of Horizon will become stockholders of Flexjet, which is a Delaware corporation.

To achieve the Redomestication, Horizon will merge with and into Merger Sub 2 (the “Redomestication Merger”), as a result of which (i) the separate existence of Horizon will cease, (ii) Merger Sub 2 will be the surviving entity in the Redomestication Merger, and (iii) Merger Sub 2 will remain a wholly owned subsidiary of Flexjet.

Pursuant to the Redomestication Merger, the following will occur:

(i) each Class A ordinary share of Horizon, par value $0.0001 per share (“Horizon Class A Stock”), issued and outstanding immediately prior to the effective time of the Redomestication Merger will be automatically cancelled and converted into the right to receive one share of Class A common stock, par value $0.0001 per share, of Flexjet (“Flexjet Class A Common Stock”), and

(ii) each Class B ordinary share of Horizon, par value $0.0001 per share (“Horizon Class B Stock” and, together with the Horizon Class A Stock, the “Horizon Stock”), issued and outstanding immediately prior to the effective time of the Redomestication Merger will be automatically cancelled and converted into the right to receive one share of Class B common stock, par value $0.0001 per share, of Flexjet (“Flexjet Class B Common Stock”).

In addition, in connection with the Redomestication, Horizon, Flexjet, Merger Sub 2 and Continental Trust Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (in such capacity, the “Warrant Agent”), will enter into a Warrant Assignment, Assumption and Amendment Agreement (the “Warrant Assumption Agreement”). Pursuant to the Warrant Assumption Agreement, the Warrant Agreement, dated October 22, 2020, between Horizon and the Warrant Agent (the “Warrant Agreement”), and each Horizon warrant to purchase Horizon Class A Stock (the “Horizon Warrants”), comprised of the private placement warrants issued in a private placement concurrent with Horizon’s initial public offering (the “Horizon Private Placement Warrants”) and the public warrants (the “Horizon Public Warrants”) issued in connection with Horizon’s initial public offering, will be assumed by Flexjet. The Horizon Private Placement Warrants and the Horizon Public Warrants, as assumed by Flexjet, are referred to herein as the “Flexjet Assumed Private Warrants” and the “Flexjet Assumed Public Warrants,” respectively, and collectively as the “Flexjet Assumed Warrants.” The Warrant Assumption Agreement will also make minor technical amendments to the Warrant Agreement to facilitate the transactions contemplated by the BCA, each as assigned to and assumed by Flexjet. No such amendment will be adverse to the holders of the Horizon Warrants.

As a result of the Warrant Assumption Agreement, the Horizon Warrants will automatically be deemed to have become Flexjet Warrants issued by Flexjet pursuant to the Warrant Agreement, and the securities initially deliverable upon the exercise of the Flexjet Warrants will be the shares of Flexjet Common Stock outstanding at the Closing.

Also, in connection with the Redomestication, the Investment Management Trust Agreement dated October 22, 2020 between Horizon and Continental Stock Transfer & Trust Company, as trustee, will be assigned to, and assumed by Flexjet.

The Exchange

On the date of the Business Combination Merger but prior to the effective time of the Business Combination Merger, Sponsor will tender its 13,125,000 shares of Flexjet Class B Common Stock to be received in the Redomestication Merger in exchange for (i) shares of Flexjet Class A Common Stock, and (ii) warrants to purchase Flexjet Class A Common Stock in accordance with the Exchange Agreement and New Warrant Agreement described below (the “Exchange”). See “Certain Related Agreements – Exchange Agreement” below for a description of the Exchange.

The Business Combination Merger

On the day immediately following the Redomestication Merger, substantially simultaneously with any PIPE Investment (as defined below) and following the Exchange, Merger Sub 1 will merge with and into Combined TargetCo, with Combined TargetCo surviving as a direct, wholly owned subsidiary of Merger Sub 2 and an indirect, wholly owned subsidiary of Flexjet (the “Business Combination Merger”).

Pursuant to the Business Combination Merger, the following will occur:

(i) each share of common stock of Combined TargetCo issued and outstanding immediately prior to the effective time of the Business Combination Merger will be converted into the right to receive a number of shares of Flexjet Common Stock equal to the Exchange Ratio (as defined below), except that this conversion will not apply to shares subject to options of Combined TargetCo, treasury shares or shares with respect to which appraisal rights have been properly exercised; and

(ii) each option of Combined TargetCo issued and outstanding immediately prior to the effective time of the Business Combination Merger will be converted into the right receive a vested option to purchase shares of Flexjet Common Stock upon substantially the same terms and conditions as are in effect with respect to such option immediately prior the Business Combination Merger, with related adjustments to the number of shares subject to such option and the exercise price based on the Exchange Ratio.

The “Exchange Ratio” equals (1) the number of shares constituting the Aggregate Merger Consideration, divided by (2) the total number of shares of Combined TargetCo common stock outstanding immediately prior to the consummation of Business Combination Merger after giving effect to all pre-Closing reorganization transactions, including “in-the-money” options. The “Aggregate Merger Consideration” equals a number of shares of Flexjet Common Stock equal to the quotient obtained by dividing (i)(A) the Base Purchase Price (being $2,406,049,000) minus (B) the Secondary Proceeds (being the aggregate $80,500,000 redemption price to be paid to holders of Series D Shares of Combined TargetCo that will be redeemed as part of the Business Combination) divided by (ii) $10.00.

Immediately prior to the Business Combination Merger, Flexjet will amend and restate its certificate of incorporation, pursuant to which each share of Flexjet Class A Common Stock will be reclassified as Flexjet Common Stock, and the Flexjet Common Stock will be the only class of common equity of Flexjet issued and outstanding.

On September 19, 2022, Horizon obtained working capital loans in the total amount of $1,500,000 from the Sponsor and an affiliate thereof (Vista Portfolio Trust, LLC), each evidenced by an unsecured convertible promissory note. All or any portion of the principal amount of such convertible notes that a holder thereof elects to convert into Horizon Private Placement Warrants not less than two business days prior to the Business Combination Merger, at the $1.50 conversion price, will automatically convert, at the effective time of the Redomestication Merger, into the right to receive, at the effective time of the Business Combination Merger, a corresponding number of Flexjet Assumed Private Warrants.

The Redomestication, the Exchange, the Business Combination Merger and the other transactions contemplated by the BCA are referred to as the “Business Combination” and the closing date of the Business Combination Merger is referred to as the “Closing.”

Substantially concurrently with the Closing, Flexjet will consummate the transactions contemplated by (i) if applicable, the Eldridge Back-Stop Agreement (as defined below), and (ii) any PIPE Investment (as defined below).

Flexjet expects to file the registration statement registering the Flexjet Common Stock issuable in the Business Combination Merger (the “Registration Statement”) as promptly as possible following receipt Flexjet’s audited financial statements required to be included therein. The Business Combination is expected to close in the second quarter of 2023, subject to the receipt of the required approvals by Horizon’s shareholders and the fulfillment of other customary closing conditions.

Representations and Warranties; Covenants

The BCA contains representations, warranties and covenants of each of Epic, Flexjet (prior to the consummation of the Redomestication) and Merger Sub 2 (prior to the consummation of the Redomestication) and, upon Combined TargetCo’s execution of a joinder to the BCA, Combined TargetCo (such parties, collectively, the “Target Companies”), and Horizon and Merger Sub 1, that are customary for transactions of this type, including with respect to corporate organization or formation and authorization, third party consents, capitalization, financial statements, material contracts, tax matters, compliance with laws, employee and benefits matters and intellectual property, among others.

Effective immediately following the Closing, Flexjet’s board of directors will be comprised of seven directors, who will initially be:

(i) four directors designated by Directional Equityholders (as defined below), of which at least two will qualify as an “independent director” under stock exchange regulations applicable to Flexjet; and

(ii) three directors designated by the Eldridge Equityholders (as defined below), of which at least two directors will qualify as “independent directors” under stock exchange regulations applicable to Flexjet.

Closing Conditions

The obligations of the Parties to consummate the Business Combination are subject to certain closing conditions, including, but not limited to, (i) the requisite approvals of the Horizon stockholders, (ii) the requisite approvals of Combined TargetCo’s stockholders, (iii) the Registration Statement becoming effective under the Securities Act of 1933 (the “Securities Act”), (iv) the Flexjet Common Stock being approved for listing on a national exchange, (v) the amount of Available SPAC Cash (as defined below) being at least $300,000,000, (vi) the consummation of certain pre-Closing acquisition and disposition transactions by the Target Companies and (vii) performance of each Parties’ covenants to be performed under the BCA in all material respects.

“Available SPAC Cash” means:

· The amount of cash available in Horizon’s trust account at Closing after satisfaction of any redemptions (but prior to payment of any deferred underwriting commissions or certain transaction expenses); plus

· The PIPE Investment actually received prior to or substantially concurrently with the Closing, including, if necessary, the Eldridge Back-Stop Amount (as defined below).

In connection with the execution of the BCA, the Sponsor has executed a Non-Redemption and Support Agreement pursuant to which the Sponsor has agreed not to redeem the $155,000,000 of Horizon Class A Stock it currently holds. See “Certain Related Agreements – Sponsor Support Agreement” below. In addition, Eldridge has agreed to invest up to $145,000,000 pursuant to the Back-Stop Letter Agreement. See “Certain Related Agreements – PIPE Investment and Back-Stop Letter Agreement” below.

The holders of Horizon Class A Stock have redemption rights in connection with the Business Combination and also in connection with the pending proposal (the “Extension Amendment Proposal”) to amend Horizon’s organizational documents to extend the period of time Horizon is afforded under its organizational documents and its prospectus dated October 19, 2020 and filed with the Securities and Exchange Commission (“SEC”) on October 21, 2020 to consummate an initial business combination (the “SPAC Business Combination Deadline”), as proposed by Horizon in its definitive proxy statement filed with the SEC on August 26, 2022.

Termination

The BCA may be terminated under the following circumstances prior to the Redomestication Merger:

(i) by mutual written consent of Combined TargetCo, Epic and Horizon;

(ii) by Combined TargetCo, Epic or Horizon if any Governmental Authority (as defined in the BCA) shall have enacted, issued, promulgated, enforced or entered any Governmental Order (as defined in the BCA) which has become final and non-appealable and has the effect of making consummation of the Business Combination illegal or otherwise preventing or prohibiting consummation of the Business Combination or if there shall be adopted any law that permanently makes consummation of the Business Combination illegal or otherwise prohibited;

(iii) by Combined TargetCo, Epic or Horizon if the SPAC Shareholder Approval (as defined in the BCA) shall not have been obtained by reason of the failure to obtain the required vote at the SPAC Shareholders’ Meeting (as defined in the BCA) duly convened therefor or at any adjournment or postponement thereof;

(iv) by Combined TargetCo or Epic if approval by the requisite vote of Horizon’s stockholders shall not have been obtained to the Extension Amendment Proposal;

(v) by written notice to Combined TargetCo and Epic from Horizon if there is any breach of any representation, warranty, covenant or agreement on the part of the Target Companies set forth in the BCA such that certain conditions to closing cannot be satisfied and such breach is not cured within the cure period window, provided that Horizon is not then in breach of any of its representations, warranties, covenants or agreements such that certain conditions to closing cannot be satisfied;

(vi) prior to the Closing, by written notice to Horizon from Combined TargetCo or Epic there is any breach of any representation, warranty, covenant or agreement on the part of Horizon or Merger Sub 1 set forth in the BCA such that certain conditions to closing cannot be satisfied and such breach is not cured within the cure period window, provided that the Target Companies are not then in breach of any of their representations, warranties, covenants or agreements such that certain conditions to closing cannot be satisfied;

(vii) by Combined TargetCo, Epic or SPAC if the Closing has not occurred on or before September 30, 2023, provided that any such party shall not have the right to so terminate the BCA if such party has breached any of its representations, warranties, covenants or agreements under the BCA and such breach shall have proximately caused the failure of the Closing to occur on or before September 30, 2023; or

(viii) by Combined TargetCo or Epic if the Horizon board of directors shall have withdrawn, amended or qualified its recommendation to the Horizon stockholders to vote in favor of the Business Combination.

If the BCA is validly terminated pursuant to clause (iv) above, Horizon will pay Epic an amount equal to the lesser of (a) the Company Transaction Expenses (as defined in the BCA) and (b) $1,000,000, in either case, within two Business Days after receipt by Horizon of documented evidence of the Company Transaction Expenses.

If the BCA is validly terminated, none of the parties to the BCA will have any liability or any further obligation under the BCA, except in the case of fraud or willful and material breach of the BCA occurring prior to the termination of the BCA. Upon a valid termination of the BCA, no provisions therein will survive other than customary confidentiality obligations and other miscellaneous provisions.

The foregoing description of the BCA does not purport to be complete and is qualified in its entirety by reference to the BCA, which is filed as Exhibit 2.1 hereto, and which is incorporated by reference herein. The BCA contains representations, warranties and covenants that the parties to the BCA made to each other as of the date of the BCA or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the BCA. The BCA has been attached to provide investors with information regarding its terms and is not intended to provide any other factual information about Horizon, Epic or Flexjet or any other party to the BCA. In particular, the representations, warranties, covenants and agreements contained in the BCA, which were made only for purposes of the BCA and as of specific dates, were solely for the benefit of the parties to the BCA (other than as expressly provided for in the BCA), may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the BCA instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors and reports and documents filed with the SEC. Investors should not rely on the representations, warranties, covenants or agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the BCA. In addition, the representations, warranties, covenants and agreements and other terms of the BCA may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the representations and warranties and other terms may change after the date of the BCA, which subsequent information may or may not be fully reflected in Horizon’s or Flexjet’s public disclosures.

Certain Related Agreements

Exchange Agreement

Concurrently with the execution of the BCA, Flexjet, Directional Capital LLC (“Directional”) and Sponsor entered into an exchange agreement (the “Exchange Agreement”), pursuant to which, on the day of the Business Combination Merger but before the effective time of the Business Combination Merger, Sponsor agreed to consummate the Exchange. As part of the Exchange, Flexjet agreed to issue (i) warrants to purchase 20,000,000 shares of Flexjet Class A Common Stock, at an exercise price of $10.00 per share (the “Flexjet New Private $10.00 Warrants”), (ii) warrants to purchase 20,000,000 shares of Flexjet Class A Common Stock, at an exercise price of $15.00 per share (the “Flexjet New Private $15.00 Warrants”), and (iii) 50,000 shares of Flexjet Class A Common Stock, in each case, half of which such warrants and shares will be issued to Sponsor and half to Directional as part of the Business Combination Merger.

The foregoing description of the Exchange Agreement does not purport to be complete and is qualified in its entirety by reference to the Exchange Agreement, which is filed as Exhibit 10.1 hereto, and which is incorporated by reference herein.

New Warrant Agreement

The Flexjet New Private $10.00 Warrants and Flexjet New Private $15.00 Warrants (together, the “Flexjet New Private Warrants”) will be issued pursuant to a new warrant agreement of Flexjet (the “New Warrant Agreement”) to be entered into by Flexjet and the Warrant Agent in connection with the Business Combination Merger.

The Flexjet New Private Warrants will be similar to the Flexjet Assumed Private Warrants, but they will differ from the Flexjet Assumed Private Warrants principally in the following respects: (i) they will not be redeemable; (ii) they will have different strike prices; and (iii) they will have certain more favorable adjustment provisions relating to certain capital events, including the use of an uncapped option referent in one such provision instead of a capped option.

The foregoing description of the New Warrant Agreement does not purport to be complete and is qualified in its entirety by reference to the New Warrant Agreement, a form of which is included as Exhibit F to the BCA, filed as Exhibit 10.2 hereto, and which is incorporated by reference herein.

Sponsor Support Agreement

Concurrently with the execution of the BCA, Sponsor, Horizon, Flexjet and Epic entered into a support and non-redemption agreement (the “Sponsor Support Agreement”). Under the Sponsor Support Agreement, Sponsor agreed, among other things, to:

(i) waive its anti-dilution rights with respect to its shares of Horizon Stock in connection with the Business Combination;

(ii) vote at any meeting of Horizon’s shareholders, and in any action by written consent of Horizon’s shareholders, all of its Horizon Stock in favor of the adoption and approval of the BCA, the transactions contemplated thereby, including the Redomestication and the Business Combination Merger, and the other approvals contemplated to be sought with respect thereto;

(iii) be bound by certain other covenants and agreements related to the Business Combination;

(iv) be bound by certain transfer restrictions with respect to its Horizon Stock and Horizon Warrants; and

(v) not redeem any Horizon Stock or Horizon Warrants held by Sponsor in connection with the Business Combination, in each case, on the terms and subject to the conditions set forth in the Sponsor Support Agreement.

The foregoing description of the Sponsor Support Agreement does not purport to be complete and is qualified in its entirety by reference to the Sponsor Support Agreement, which is filed as Exhibit 10.3 hereto, and which is incorporated by reference herein.

Company Support Agreements

Concurrently with the execution of the BCA, Horizon, Flexjet, Epic, Directional and certain other stockholders of Epic have entered into company support agreements (the “Company Support Agreements”). Under the Company Support Agreements, each of Directional and such other Epic stockholders agreed, among other things, to:

(i) vote in favor of the adoption and approval of the BCA, the transactions contemplated thereby, including the Redomestication and the Business Combination Merger, and the other documents contemplated by the BCA, in each case, on the terms and conditions of the Company Support Agreement;

(ii) be bound by certain other covenants and agreements related to the Business Combination; and

(iii) be bound by certain transfer restrictions with respect to their Horizon and Epic securities.

The foregoing description of the Company Support Agreements does not purport to be complete and is qualified in its entirety by reference to the Company Support Agreements, a form of which is filed as Exhibit 10.4 hereto, and which is incorporated by reference herein.

Back-Stop Letter Agreement

Eldridge has agreed to invest certain amounts in Flexjet at Closing under the letter agreement (the “Back-Stop Letter Agreement”) entered into by Eldridge concurrently with the execution of the BCA. Under the Back-Stop Letter Agreement, Eldridge agreed to purchase up to 14,500,000 shares of Flexjet Common Stock at $10.00 per share for an aggregate purchase price equal to the aggregate amount payable with respect to all redemptions made by Horizon public shareholders in connection with the Business Combination up to $145,000,000 (the “Eldridge Back-Stop Amount”), reduced by the amount, if any, by which the Eldridge Back-Stop Amount plus the aggregate subscriptions for purchases of shares of Flexjet Common Stock in any PIPE Investment made by persons other than Eldridge Equityholders would exceed $275,000,000 in the aggregate.

Flexjet will pay to Eldridge a fee equal to 3% of the actual Eldridge Back-Stop Amount that is funded at the Closing as consideration for providing the backstop.

The foregoing description of the Back-Stop Letter Agreement does not purport to be complete and is qualified in its entirety by reference to the Back-Stop Letter Agreement, which is filed as Exhibit 10.5 hereto, and which is incorporated by reference herein.

PIPE Investment

In connection with the transactions contemplated by the BCA, the Parties have agreed to use their reasonable best efforts to seek additional capital investments from investors who would agree to subscribe for and purchase newly issued shares of Flexjet Common Stock substantially concurrently with the Closing (any such investment, a “PIPE Investment”). There can be no assurance that any PIPE Investment will occur.

Stockholders Agreement

At the Closing, Flexjet, Sponsor, Eldridge, Directional, Kenneth C. Ricci and Michael A. Rossi will enter into a stockholders agreement (the “Stockholders Agreement”), which will provide for, among other things, director nomination rights of (i) Directional, Kenneth C. Ricci and Michael A. Rossi (collectively, the “Directional Parties”) and any investment vehicles or funds managed or controlled, directly or indirectly, by the Directional Parties (collectively, the “Directional Equityholders”) and (ii) Eldridge, any of its affiliates and any investment vehicles or funds managed or controlled, directly or indirectly, by Eldridge or any of its affiliates (the “Eldridge Equityholders”) for the Flexjet board of directors as described above. Such director nomination rights of the Directional Equityholders and Eldridge Equityholders will automatically step down as their respective aggregate ownership interests in Flexjet decrease.

In addition to the aforementioned nomination rights, pursuant to the Stockholders Agreement, each of (i) the Directional Equityholders, (ii) Eldridge Equityholders and (iii) Sponsor and any investment vehicles or funds managed or controlled, directly or indirectly, by any of Sponsor’s affiliates will agree, subject to limited exceptions, not to transfer shares of Flexjet Common Stock or warrants to purchase shares of Flexjet Common Stock held by it for a lock-up period after Closing ending the earliest to occur of: (i) the three month anniversary of Closing, (ii) the date on which (A) the last reported sale price of Flexjet Common Stock equals or exceeds $12.00 per share for any 20 consecutive days within a 30-day trading period and (B) the average daily trading volume exceeds 500,000 shares of Flexjet Common Stock for each day within such 30-day period, and (iii) the date on which Flexjet completes a liquidation, merger, reorganization or similar transaction that results in Flexjet stockholders having the right to exchange Flexjet Common Stock for cash, securities or other property.

The foregoing description of the Stockholders Agreement does not purport to be complete and is qualified in its entirety by reference to the Stockholders Agreement, which is filed as Exhibit 10.6 hereto, and which is incorporated by reference herein.

Registration Rights Agreement

The shares of Flexjet Common Stock issued in the Business Combination are expected to be registered pursuant to the Registration Statement and be freely tradeable without restrictions imposed by the Securities Act to the extent not held by affiliates of Flexjet.

At the Closing, Flexjet, Merger Sub 2 (as successor in interest to Horizon), Directional, Sponsor, Eldridge and certain stockholders of Epic (such stockholders, Merger Sub 2, Directional, Sponsor and Eldridge, collectively, the “Holders”) will amend and restate the Registration Rights Agreement, dated as of October 22, 2020, between Horizon and Sponsor (such amended and restated agreement, the “Registration Rights Agreement”), pursuant to which, among other things, Flexjet will agree to file a registration statement for a shelf registration on Form S-1 or Form S-3 within 30 days following the Closing with respect to the securities of Flexjet. The Holders will be granted certain customary demand and piggyback registration rights under the Registration Rights Agreement, which are subject to customary terms and conditions, including with respect to cooperation and reduction of underwritten shelf takedown provisions, with respect to the securities of Flexjet.

The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by reference to the Registration Rights Agreement, a form of which is included as Exhibit C to the BCA, filed as Exhibit 10.7 hereto, and which is incorporated by reference herein.

Second Amended and Restated Certificate of Incorporation of Flexjet

At the Closing, but immediately prior to the effective time of the Business Combination Merger, the existing certificate of incorporation of Flexjet will be amended and restated in the form of a Second Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to, among other things, provide for various customary matters for public companies like Flexjet and provide for customary matters limiting the voting of Flexjet Common Stock by non- U.S. citizens due to federal law requiring that no more than 25% of outstanding Flexjet Common Stock be voted, directly or indirectly, by persons who are not U.S. citizens.

The foregoing description of the Certificate of Incorporation does not purport to be complete and is qualified in its entirety by reference to the Certificate of Incorporation, a form of which is included as Exhibit A to the BCA, filed as Exhibit 10.8 hereto, and which is incorporated by reference herein.

Second Amended and Restated Bylaws

At the Closing, but immediately prior to the effective time of the Business Combination Merger, the existing bylaws of Flexjet will be amended and restated  (the “Bylaws”) to, among other things, provide for various customary matters for public companies like Flexjet and subject the Flexjet Common Stock held by the previous stockholders of Epic to the same lockup applicable to each of the Directional Equityholders, Eldridge Equityholders and the Sponsor described in “–Certain Related Agreements—Stockholders Agreement” above.

The foregoing description of the Bylaws does not purport to be complete and is qualified in its entirety by reference to the Bylaws, a form of which is included as Exhibit B to the BCA, filed as Exhibit 10.9 hereto, and which is incorporated by reference herein.

Item 3.02 Unregistered Sales of Equity Securities.

The disclosure set forth above in Item 1.01 of this Current Report is incorporated by reference herein. The shares of Flexjet Common Stock not registered on the Registration Statement to be offered and sold in connection with the Business Combination and any PIPE Investment, as well as the Flexjet New Private Warrants and shares of Flexjet Class A Common Stock issued in the Exchange, have not been registered under the Securities Act in reliance on the exemption provided in Section 4(a)(2) thereof.

Item 7.01 Regulation FD Disclosure.

On October 11, 2022, Horizon and Epic issued a press release announcing their entry into the BCA. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.

Furnished as Exhibit 99.2 hereto and incorporated into this Item 7.01 by reference is the investor presentation that Horizon and Epic have prepared for use in connection with making presentations to certain potential investors in the PIPE Investment and in connection with the announcement of the Business Combination.

On October 11, 2022, Horizon and Epic made a webcast available on their respective websites in which members of their respective managements discussed the Business Combination (the “Webcast”). A copy of the transcript for the Webcast is attached hereto as Exhibit 99.3 and is incorporated by reference herein.

The foregoing (including Exhibits 99.1, 99.2 and 99.3) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934 (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act regardless of any general incorporation language in such filings. This Current Report will not be deemed an admission of materiality of any of the information in this Item 7.01, including Exhibits 99.1, 99.2 and 99.3.

Additional Information and Where to Find It

In connection with the Business Combination, Horizon, Epic and Flexjet intend to prepare, and Flexjet intends to file the Registration Statement containing a proxy statement/prospectus and certain other related documents, which will be both the proxy statement to be distributed to holders of Horizon Stock in connection with Horizon’s solicitation of proxies for the vote by Horizon’s stockholders with respect to the Business Combination and other matters as may be described in the Registration Statement, as well as the prospectus relating to the offer and sale of the securities of Flexjet to be issued in connection with the Business Combination. When available, Horizon will mail the definitive proxy statement/prospectus and other relevant documents to its shareholders as of a record date to be established for voting on the Business Combination. This communication is not a substitute for the Registration Statement, the definitive proxy statement/prospectus or any other document that Horizon will send to its shareholders in connection with the Business Combination. Investors and security holders of Horizon are advised to read, when available, the preliminary proxy statement/prospectus in connection with Horizon’s solicitation of proxies for its extraordinary general meeting of shareholders to be held to approve the Business Combination (and related matters) and general amendments thereto and the definitive proxy statement/prospectus because the proxy statement/prospectus will contain important information about the Business Combination and the parties to the Business Combination.

Copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed by Horizon or Flexjet with the SEC may be obtained, once available, free of charge at the SEC’s website at www.sec.gov.

Participants in the Solicitation

Horizon and its directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Horizon’s shareholders in connection with the Business Combination. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of Horizon’s shareholders in connection with the Business Combination will be in the Registration Statement, including a proxy statement/prospectus, when it is filed with the SEC. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of Horizon’s directors and officers in Horizon’s filings with the SEC and such information will also be in the Registration Statement to be filed with the SEC, which will include the proxy statement/prospectus of Horizon for the Business Combination. These documents can be obtained free of charge at the SEC’s website (www.sec.gov).

Flexjet, Epic and their respective directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of Horizon in connection with the Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed business combination will be included in the proxy statement/prospectus for the Business Combination when available.

Forward-Looking Statements

Certain statements made in this Current Report and the documents incorporated by reference herein are “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by words such as: “target,” “believe,” “expect,” “will,” “shall,” “may,” “anticipate,” “estimate,” “would,” “positioned,” “future,” “forecast,” “intend,” “plan,” “project,” “outlook” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Examples of forward-looking statements include, among others, statements made in this Current Report regarding the proposed transactions contemplated by the BCA, including the benefits of the Business Combination, integration plans, expected synergies and revenue opportunities, anticipated future financial and operating performance and results, including estimates for growth, the expected management and governance of the combined company, and the expected timing of the Business Combination.

Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on Horizon’s and Epic’s managements’ current beliefs, expectations and assumptions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. Actual results and outcomes may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these forward-looking statements.

Important factors that could cause actual results and outcomes to differ materially from those indicated in the forward-looking statements include, among others, the following: (1) the occurrence of any event, change, or other circumstances that could give rise to the termination of the BCA; (2) the outcome of any legal proceedings that may be instituted against Horizon, Epic or Flexjet following the announcement of the BCA and the transactions contemplated therein; (3) the inability to complete the proposed Business Combination, including due to failure to obtain approval of the stockholders of Horizon and Epic, certain regulatory approvals, or satisfy other conditions to closing in the BCA; (4) the occurrence of any event, change, or other circumstance that could give rise to the termination of the BCA or could otherwise cause the transaction to fail to close; (5) the failure to meet the minimum cash requirement of the BCA due to Horizon shareholder redemptions and the failure to obtain replacement financing; (6) the inability to complete a concurrent PIPE Investment in connection with the Business Combination; (7) the failure to meet projected development and production targets; (8) the inability to obtain or maintain the listing of Flexjet’s shares of common stock on The New York Stock Exchange following the proposed Business Combination; (9) the risk that the proposed Business Combination disrupts current plans and operations as a result of the announcement and consummation of the proposed Business Combination; (10) the ability to recognize the anticipated benefits of the proposed Business Combination, which may be affected by, among other things, competition, the ability of Horizon, Epic and Flexjet to each grow and manage growth profitably, and retain its key employees; (11) costs related to the proposed Business Combination; (12) changes in applicable laws or regulations; (13) the possibility that Horizon or Epic may be adversely affected by other economic, business, and/or competitive factors; (14) risks relating to the uncertainty of the projected financial information with respect to Epic; (15) risks related to the organic and inorganic growth of Epic’s business and the timing of expected business milestones; (16) the amount of redemption requests made by Horizon’s shareholders; (17) actual or potential conflicts of interest of Horizon’s shareholders and other related parties as a result of certain relationships and transactions with Flexjet, Epic and Horizon, including significant ownership interests and business relationships; (18) members of management of Epic and their affiliated entities and Eldridge and its affiliates (including Sponsor) will control Flexjet following the consummation of the Business Combination, and their interests may conflict with Flexjet’s or its public stockholders, and such persons will be able to determine the composition of Flexjet’s board of directors and actions requiring stockholder approval, including a sale of Flexjet (including in an unsolicited transaction, which they will be able to block); and (19) other risks and uncertainties indicated from time to time in the final prospectus of Horizon for its initial public offering dated March 15, 2021 filed with the SEC and the Registration Statement on Form S-1, that includes a preliminary proxy statement/prospectus, and when available, a definitive proxy statement and final prospectus relating to the proposed Business Combination, including those under “Risk Factors” therein, and in Horizon’s and Flexjet’s other filings with the SEC. Horizon cautions that the foregoing list of factors is not exclusive.

Horizon, Epic and Flexjet caution readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Horizon, Epic and Flexjet do not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in their expectations or any change in events, conditions, or circumstances on which any such statement is based, whether as a result of new information, future events, or otherwise, except as may be required by applicable law. None of Horizon, Epic and Flexjet gives any assurance that any of Horizon, Epic or Flexjet will achieve its expectations.

No Offer or Solicitation

This Current Report is for informational purposes only and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer or securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or an exemption therefrom, and otherwise in accordance with applicable law.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.	Description
2.1*	Business Combination Agreement, dated October 11, 2022, among Horizon Acquisition Corporation II, OTH Merger Sub 1, LLC, Flexjet, Inc., Flexjet Sub, LLC and Epic Aero, Inc.
10.1	Exchange Agreement, dated October 11, 2022, among Flexjet, Inc., Directional Capital LLC and Horizon II Sponsor, LLC.
10.2	Form of New Warrant Agreement.
10.3	Sponsor Support and Non-Redemption Agreement, dated October 11, 2022, among Horizon II Sponsor, LLC, Horizon Acquisition Corporation II, Flexjet, Inc. and Epic Aero, Inc.
10.4	Company Support Agreement, dated October 11, 2022, among Horizon Acquisition Corporation II, Flexjet, Inc., Epic Aero, Inc. and the stockholders party thereto.
10.5	Back-Stop Letter Agreement, dated October 11, 2022, by Eldridge Industries, LLC.

10.6	Form of Stockholders Agreement.
10.7	Form of Amended and Restated Registration Rights Agreement.
10.8	Form of Second Amended and Restated Certificate of Incorporation of Flexjet.
10.9	Form of Bylaws of Flexjet.
99.1	Press Release, dated October 11, 2022.
99.2	Investor Presentation.
99.3	Transcript of Webcast.
104	Cover Page Interactive Data File - the cover page interactive data file does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document

* Certain exhibits and schedules to this exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. Horizon agrees to furnish supplementally a copy of any omitted exhibit or schedule to the SEC upon its request.

 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.

HORIZON ACQUISITION CORPORATION II

By:	/s/ Todd Boehly
	Name:	Todd Boehly
	Title:	Chairman, Chief Executive Officer and Chief Financial Officer

Date: October 11, 2022 

EX-2.1

Exhibit 2.1

Dated October 11, 2022

BUSINESS COMBINATION AGREEMENT

by and among

Horizon Acquisition Corporation II,

OTH Merger Sub 1, LLC

Flexjet, Inc.,

Flexjet Sub, LLC

and

Epic Aero, Inc.

Table of Contents

Page

Article I CERTAIN DEFINITIONS		4
Section 1.1	Definitions	4
Section 1.2	Construction	21
Article II THE MERGERS; CLOSING		23
Section 2.1	SPAC Merger	23
Section 2.2	Company Merger	23
Section 2.3	Sponsor Exchange	24
Section 2.4	Eldridge Back-Stop; PIPE Investment	24
Section 2.5	Closing	24
Section 2.6	Closing Deliverables; Closing Transactions	24
Section 2.7	Organizational Documents	26
Section 2.8	Directors and Officers	26
Section 2.9	Tax Treatment	27
Article III EFFECTS OF THE MERGERS; Closing Transactions		28
Section 3.1	SPAC Merger Conversion of Securities	28
Section 3.2	Company Merger Conversion of Securities	29
Section 3.3	Exchange Procedures	30
Section 3.4	Treatment of Company Options	31
Section 3.5	Withholding	31
Section 3.6	Dissenting Shares	31
Article IV REPRESENTATIONS AND WARRANTIES OF the Target companies		32
Section 4.1	Organization	32
Section 4.2	Subsidiaries and Other Target Companies	32
Section 4.3	Due Authorization	33
Section 4.4	No Conflict	33
Section 4.5	Governmental Authorities; Consents	34
Section 4.6	Capitalization of Epic	34
Section 4.7	Capitalization of Subsidiaries and Other Target Companies	35
Section 4.8	Financial Statements	35
Section 4.9	No Undisclosed Liabilities	36
Section 4.10	Litigation and Proceedings	36
Section 4.11	Legal Compliance	36
Section 4.12	Contracts; No Defaults	37
Section 4.13	Epic Benefit Plans	39
Section 4.14	Labor Relations; Employees	41
Section 4.15	Taxes	42
Section 4.16	Real Property	43
Section 4.17	Intellectual Property	44
Section 4.18	Insurance	45
Section 4.19	Privacy and Cybersecurity	45
Section 4.20	Environmental Matters	46
Section 4.21	Absence of Changes	47
Section 4.22	Anti-Corruption Compliance	47
Section 4.23	Sanctions and International Trade Compliance	47
Section 4.24	Compliance with Aviation Laws	47
Section 4.25	Registration Statement and Proxy Statement	48

(i) 

Page

Section 4.26	Brokers’ Fees	48
Section 4.27	Related Party Transactions	48
Section 4.28	Business Activities	49
Section 4.29	No Reliance	49
Section 4.30	No Additional Representation or Warranties	50
Article V REPRESENTATIONS AND WARRANTIES OF SPAC and MERGER SUB 1		50
Section 5.1	Organization	50
Section 5.2	Due Authorization	51
Section 5.3	No Conflict	52
Section 5.4	Litigation and Proceedings	52
Section 5.5	Legal Compliance	52
Section 5.6	SEC Filings	53
Section 5.7	Internal Controls; Listing; Financial Statements	53
Section 5.8	Governmental Authorities; Consents	54
Section 5.9	Trust Account	55
Section 5.10	Investment Company Act; JOBS Act	55
Section 5.11	Absence of Changes	55
Section 5.12	Anti-Corruption Compliance	55
Section 5.13	No Undisclosed Liabilities	55
Section 5.14	Capitalization of SPAC	56
Section 5.15	Brokers’ Fees	57
Section 5.16	Indebtedness	57
Section 5.17	Taxes	57
Section 5.18	Business Activities	58
Section 5.19	Employee Matters	59
Section 5.20	Stock Market Quotation.	59
Section 5.21	No Reliance	60
Section 5.22	Registration Statement and Proxy Statement/Prospectus	60
Section 5.23	No Additional Representation or Warranties	60
Article VI COVENANTS OF THE TARGET COMPANIES		61
Section 6.1	Conduct of Business of Epic and its Subsidiaries	61
Section 6.2	Conduct of Business of Flexjet, the Company and Merger Sub 2	63
Section 6.3	Access to Information	64
Section 6.4	Preparation and Delivery of Additional Epic Financial Statements; Access to Financial Information	64
Section 6.5	Acquisition Proposals	65
Section 6.6	Pre-Closing Reorganization	65
Section 6.7	No Securities Transactions	66
Section 6.8	Target Company Approvals	66
Section 6.9	PIPE Subscriptions	66
Section 6.10	Employee Agreements	67
Section 6.11	Certain Required Actions	67
Article VII COVENANTS OF SPAC		67
Section 7.1	Trust Account Proceeds and Related Available Equity	67
Section 7.2	No Solicitation by SPAC	68
Section 7.3	SPAC Conduct of Business	68

(ii) 

Page

Section 7.4	Access to Information	70
Section 7.5	Termination of Original RRA	71
Section 7.6	Shareholder Litigation	71
Section 7.7	Extension of SPAC Deadline	71
Article VIII JOINT COVENANTS		71
Section 8.1	Regulatory Filings	71
Section 8.2	Preparation of Registration Statement and Proxy Statement/Prospectus; Shareholders’ Meeting and Approvals	72
Section 8.3	Support of Transaction	76
Section 8.4	Tax Matters	76
Section 8.5	Cooperation; Consultation	76
Section 8.6	Post-Closing Directors and Officers of Flexjet	77
Section 8.7	Indemnification and Insurance	77
Section 8.8	Employee Matters.	78
Section 8.9	Notification of Certain Matters	79
Section 8.10	Insider Letter	79
Section 8.11	Warrant Agreements	79
Section 8.12	SPAC Merger	79
Section 8.13	Stock Exchange Listing	79
Section 8.14	Public Filings	79
Section 8.15	Assignment of Trust Account	80
Article IX CONDITIONS TO OBLIGATIONS		80
Section 9.1	Conditions to Obligations of all Parties	80
Section 9.2	Conditions to Obligations of SPAC and Merger Sub 1	81
Section 9.3	Conditions to the Obligations of the Target Companies	81
Section 9.4	Frustration of Closing Conditions	83
Section 9.5	Waiver of Closing Conditions	83
Article X TERMINATION/EFFECTIVENESS		83
Section 10.1	Termination	83
Section 10.2	Notice of Termination; Effect of Termination	84
Section 10.3	Expense Reimbursement	84
Article XI MISCELLANEOUS		84
Section 11.1	Trust Account Waiver	84
Section 11.2	Non-Recourse	85
Section 11.3	Non-Survival of Representations, Warranties and Covenants	86
Section 11.4	Waiver	86
Section 11.5	Notices	86
Section 11.6	Assignment	87
Section 11.7	Rights of Third Parties	87
Section 11.8	Expenses	87
Section 11.9	Governing Law	89
Section 11.10	Headings; Counterpart; Electronic Delivery	89
Section 11.11	Epic and SPAC Disclosure Letters	89
Section 11.12	Entire Agreement	89
Section 11.13	Amendments	89
Section 11.14	Publicity	89

(iii) 

Page

Section 11.15	Severability	89
Section 11.16	Jurisdiction; Waiver of Jury Trial	89
Section 11.17	Conflicts and Privilege	90
Section 11.18	Other Remedies; Specific Enforcement	91

(iv) 

Schedules

Schedule 1.1	Pre-Closing Reorganization
Schedule 1.2	Certain Payments
Schedule 6.11	Required Actions

Exhibits

Exhibit A	Form of Second Amended and Restated Flexjet Charter
Exhibit B	Form of Second Amended and Restated Flexjet Bylaws
Exhibit C	Form of Registration Rights Agreement
Exhibit D	Form of Stockholders Agreement
Exhibit E	Form of Incentive Equity Plan
Exhibit F	Form of Flexjet New Warrant Agreement
Exhibit G	Form of Warrant Assumption Agreement

(v) 

BUSINESS COMBINATION AGREEMENT

PREAMBLE

THIS BUSINESS COMBINATION AGREEMENT, dated as of October 11, 2022 (this “Agreement”), is made and entered into by and among Horizon Acquisition Corporation II, a Cayman Islands exempted company (“SPAC”), OTH Merger Sub 1, LLC, a Delaware limited liability company and a direct wholly-owned subsidiary of SPAC (“Merger Sub 1”), Flexjet, Inc., a Delaware corporation (“Flexjet”), Flexjet Sub, LLC, a Delaware limited liability company and a direct wholly-owned subsidiary of Flexjet (“Merger Sub 2”) and Epic Aero, Inc., a Delaware corporation (“Epic”). Each of SPAC, Merger Sub 1, Flexjet, Merger Sub 2 and Epic are referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, SPAC is a blank check company incorporated as a Cayman Islands exempted company for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses;

WHEREAS, on the date hereof, Flexjet, Directional and Horizon II Sponsor, LLC, a Delaware limited liability company (“Sponsor”) will enter into that certain exchange agreement (the “Exchange Agreement”) whereby, effective on the Closing Date but prior to the Company Merger Effective Time and adoption of the Second Amended and Restated Flexjet Charter, Sponsor shall irrevocably tender to Flexjet 13,125,000 shares of Flexjet Class B Common Stock received in the SPAC Merger, being all of the issued and outstanding shares of Flexjet Class B Common Stock, for cancellation in exchange for (a) warrants to purchase 20,000,000 shares of Flexjet Class A Common Stock at an exercise price of $10.00 per share (the “Flexjet New Private $10.00 Warrants”) that will be subject to the Flexjet New Warrant Agreement, of which 10,000,000 Flexjet New Private $10.00 Warrants will be issued to Sponsor and 10,000,000 Flexjet New Private $10.00 Warrants will be issued to Directional, (b) warrants to purchase 20,000,000 shares of Flexjet Class A Common Stock at an exercise price of $15.00 per share (the “Flexjet New Private $15.00 Warrants”) that will be subject to the Flexjet New Warrant Agreement, of which 10,000,000 Flexjet New Private $15.00 Warrants will be issued to Sponsor and 10,000,000 Flexjet New Private $15.00 Warrants will be issued to Directional, and (c) 50,000 shares of Flexjet Class A Common Stock, of which 25,000 shares of Flexjet Class A Common Stock will be issued to Sponsor and 25,000 shares of Flexjet Class A Common Stock will be issued to Directional, as more particularly set forth in the Exchange Agreement (collectively, the “Sponsor Exchange”);

WHEREAS, on the date hereof, Flexjet and Eldridge will enter into a backstop letter agreement (the “Eldridge Back-Stop Letter Agreement”) pursuant to which, and on the terms and subject to the conditions of which, Sponsor shall agree to subscribe for and purchase up to 14,500,000 newly issued shares of Flexjet Common Stock at a purchase price of $10.00 per share of Flexjet Common Stock for an aggregate purchase price of up to $145,000,000 on the terms and subject to the conditions set forth therein (the “Eldridge Back-Stop Amount”), such purchase to be consummated substantially concurrently with the Closing (the “Eldridge Back-Stop”);

WHEREAS, following the date hereof and in connection with the transactions contemplated by this Agreement, the Parties shall use their commercially reasonable efforts to cause certain PIPE Investors to enter into Subscription Agreements with Flexjet pursuant to which, and on the terms and subject to the conditions of which, such PIPE Investors shall agree to subscribe for and purchase newly issued shares of Flexjet Common Stock, such purchases to be consummated substantially concurrently with the Closing (together with the Eldridge Back-Stop (if applicable), the “PIPE Investment”);

WHEREAS, as a condition and inducement to the Target Companies’ willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, the Sponsor has executed and delivered to Epic and Flexjet the Support and Non-Redemption Agreement pursuant to which the Sponsor has agreed to, among other things, (a) vote to adopt and approve this Agreement and the other documents contemplated hereby and the transactions contemplated hereby and thereby and (b) not redeem any SPAC Common Stock or SPAC Warrants held by the Sponsor, in each case, pursuant to the terms and conditions of the Support and Non-Redemption Agreement;

WHEREAS, as a condition and inducement to SPAC’s and Merger Sub 1’s willingness to enter into this Agreement, simultaneously with the execution and delivery of this Agreement, each of Directional and certain other stockholders of Epic have executed and delivered to SPAC a Support Agreement (each, a “Company Support Agreement”) pursuant to which each such Person has agreed to, among other things, vote to adopt and approve this Agreement and the other documents contemplated hereby and the transactions contemplated hereby and thereby, in each case, pursuant to the terms and conditions of the Company Support Agreement;

WHEREAS, the board of directors of each of the Parties (other than Merger Sub 2) has (a) approved this Agreement and the documents contemplated hereby that such Party is or will be a party to and the transactions contemplated hereby and thereby, (b) declared it advisable for such Party to enter into this Agreement and the other documents contemplated hereby that such Party is or will be a party to, and (c) recommended the approval of this Agreement and the other documents contemplated hereby that such Party is or will be a party to by such Party’s stockholders;

WHEREAS, SPAC, as sole member of Merger Sub 1, has approved this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby, and declared it advisable for Merger Sub 1 to enter into this Agreement and the other documents contemplated hereby;

WHEREAS, the managers of Merger Sub 2 have approved this Agreement and the documents contemplated hereby and the transactions contemplated hereby and thereby, and declared it advisable for Merger Sub 2 to enter into this Agreement and the other documents contemplated hereby;

WHEREAS, in furtherance of the Mergers and in accordance with the terms hereof, SPAC shall provide an opportunity to SPAC Shareholders to have their outstanding shares of SPAC Common Stock redeemed on the terms and subject to the conditions set forth in this Agreement and SPAC’s Organizational Documents in connection with obtaining the SPAC Shareholder Approval;

WHEREAS, prior to the SPAC Merger Effective Time, the consummation of the Pre-Closing Reorganization shall occur;

WHEREAS, one Business Day prior to the Company Merger Effective Time (which shall also be the calendar day immediately prior to the Closing Date) (and for the avoidance of doubt, prior to the consummation of (a) the PIPE Investment (including the Eldridge Back-Stop (if necessary)) and (b) the Sponsor Exchange, and following the Pre-Closing Reorganization) and on the terms and subject to the conditions set forth in this Agreement and in accordance with the relevant provisions of the Delaware General Corporation Law (the “DGCL”), the Delaware Limited Liability Company Act (the “DLLCA”) and the Cayman Islands Companies Act (the “Cayman Act”), subject to obtaining the SPAC Shareholder Approval, SPAC will merge with and into Merger Sub 2, the separate corporate existence of SPAC will cease and Merger Sub 2 will be the surviving limited liability company and a wholly-owned subsidiary of Flexjet (the “SPAC Merger”);

2 

WHEREAS, immediately prior to the Company Merger Effective Time, subject to obtaining the SPAC Shareholder Approval, Flexjet shall file with the Secretary of State of the State of Delaware the Second Amended and Restated Flexjet Charter substantially in the form attached as Exhibit A hereto and adopt the Second Amended and Restated Flexjet Bylaws substantially in the form attached as Exhibit B hereto, in each case, with such changes as may be agreed in writing by SPAC, Flexjet, Epic and the Company at any time prior to the effectiveness of the Registration Statement;

WHEREAS, at the Company Merger Effective Time (and for the avoidance of doubt, following the Pre-Closing Reorganization, the SPAC Merger and the Sponsor Exchange and substantially simultaneously with the PIPE Investment), and on the terms and subject to the conditions set forth in this Agreement and in accordance with the relevant provisions of the DGCL, subject to obtaining the Target Company Securityholder Approval, Merger Sub 1 will merge with and into the Company (as defined in Section 1.1), the separate corporate existence of Merger Sub 1 will cease and the Company will be the surviving corporation and a direct, wholly-owned subsidiary of the SPAC Surviving Sub and an indirect, wholly-owned subsidiary of Flexjet (the “Company Merger”);

WHEREAS, (a) SPAC, Sponsor and certain other parties thereto entered into that certain Registration and Shareholder Rights Agreement, dated as of October 22, 2020 (the “Original RRA”), (b) SPAC, the Sponsor and certain of SPAC’s officers, director and director nominees entered into that certain letter agreement, dated as of October 19, 2020 (the “Initial Insider Letter”), and (c) SPAC and certain of SPAC’s directors entered into those certain letter agreements, dated as of November 18, 2020 and October 19, 2021 (each, an “Additional Insider Letter” and, together with the Initial Insider Letter, the “Insider Letters”);

WHEREAS, at the Closing, Sponsor, Flexjet, and certain other parties thereto shall enter into a registration rights agreement (the “Registration Rights Agreement”) substantially in the form attached hereto as Exhibit C, which shall be effective as of the Closing and, in connection with the execution of the Registration Rights Agreement, the parties to the Original RRA desire to terminate the Original RRA and replace it with the Registration Rights Agreement;

WHEREAS, at the Closing, Flexjet, the Sponsor, and certain other parties thereto shall enter into a Stockholders Agreement substantially in the form attached hereto as Exhibit D (the “Stockholders Agreement”), which shall be effective as of the Closing and, in connection with the execution of the Stockholders Agreement, the parties to the Insider Letters desire to terminate the lock-up provisions contained in Section 5 of the Insider Letters and replace them with the Stockholders Agreement; and

WHEREAS, each of the Parties intends that, for U.S. federal income tax purposes (and for purposes of any applicable state or local income tax that follows the U.S. federal income tax treatment), (a) the SPAC Merger qualifies as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code (the “SPAC Merger Intended Tax Treatment”), (b) the Sponsor Exchange qualifies as a “reorganization” within the meaning of Section 368(a)(1)(E) of the Code (the “Exchange Intended Tax Treatment”), (c) the Company Merger qualifies as a “reorganization” within the meaning of Section 368(a) of the Code to which each of Flexjet, Merger Sub 1 and the Company are parties under Section 368(b) of the Code, and (d) the Company Merger, the Eldridge Back-Stop and the PIPE Investment, taken together, qualify as a transaction described in Section 351(a) of the Code and the Treasury Regulations promulgated thereunder (clauses (c) and (d), the “Company Merger Intended Tax Treatment” and, together with the Exchange Intended Tax Treatment and the SPAC Merger Intended Tax Treatment, the “Intended Tax Treatment”), and this Agreement is intended to constitute a “plan of reorganization” for purposes of Sections 354, 361 and the 368 of the Code and within the meaning of Treasury Regulations Section 1.368-2(g).

3 

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the Parties hereby agree as follows.

Article I
CERTAIN DEFINITIONS

Section 1.1      Definitions. As used herein, the following terms shall have the following meanings:

“Action” means any claim, complaint, action, suit, proceeding, audit, examination, assessment, arbitration, litigation, mediation or investigation, by or before any Governmental Authority.

“Additional Insider Letter” has the meaning specified in the Recitals hereto.

“Additional SEC Reports” has the meaning specified in Section 8.14.

“Additional SPAC SEC Filings” has the meaning specified in Section 5.6.

“Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person, whether through one or more intermediaries or otherwise. The term “control” (including, with correlative meaning, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by Contract or otherwise.

“Aggregate Fully Diluted Company Common Shares” means, without duplication, (a) the aggregate number of shares of Company Common Stock that are (i) issued and outstanding immediately prior to the Company Merger Effective Time, after giving effect to the Pre-Closing Reorganization, (ii) issuable upon or subject to the exercise or settlement of Company Options (whether or not then vested or exercisable), in each case, that are outstanding immediately prior to the Company Merger Effective Time, (iii) issuable upon the conversion of all shares of Company Preferred Stock pursuant to the Company’s Organizational Documents, in each case that are issued and outstanding immediately prior to the Company Merger Effective Time (and for the avoidance of doubt, after giving effect to the Pre-Closing Reorganization) and calculated on a treasury stock basis, or (iv) any other direct or indirect rights to acquire shares of Company Common Stock that are issued and outstanding immediately prior to the Company Merger Effective Time, minus (b) the Treasury Shares outstanding immediately prior to the Company Merger Effective Time, after giving effect to the Pre-Closing Reorganization, minus (c) a number of shares equal to the aggregate exercise price of the Company Options described in clause (a)(ii) above divided by the Per Share Merger Consideration; provided, that any Company Option with an exercise price equal to or greater than the Per Share Merger Consideration shall not be counted for purposes of determining the number of Aggregate Fully Diluted Company Common Shares.

“Aggregate Merger Consideration” means a number of shares of Flexjet Common Stock, equal to the quotient obtained by dividing (i)(A) the Base Purchase Price minus (B) the Secondary Proceeds, by (ii) $10.00.

“Agreement” has the meaning specified in the Preamble hereto.

“Agreement End Date” has the meaning specified in Section 10.1(e).

“Aircraft” has the meaning specified in Section 4.24(a).

4 

“Alternative Proposal” means, with respect to the Target Companies, other than the Transactions and other than the acquisition or disposition of equipment or other tangible personal property in the ordinary course of business, any offer, inquiry, proposal or indication of interest (whether written or oral, binding or non-binding) relating to, in a single transaction or series of related transactions, a merger, consolidation, share exchange, business combination, sale of a material portion of the share capital or a material portion of the assets, reorganization, recapitalization, liquidation, dissolution or other similar transaction involving the sale or disposition, of the Target Companies.

“Ancillary Agreements” means: (a) the Support and Non-Redemption Agreement; (b) the Confidentiality Agreement; (c) the Registration Rights Agreement; (d) the Stockholders Agreement; (e) the Exchange Agreement; (f) the Eldridge Back-Stop Letter Agreement; (g) the Subscription Agreements (including the Eldridge Back-Stop Subscription Agreement, if applicable); (h) the SPAC Convertible Notes; (i) the Company Support Agreements; (j) the Employee Agreements; and (k) each other agreement, document, instrument and certificate entered into in connection herewith or therewith, and any and all exhibits and schedules hereto or thereto.

“Anti-Corruption Laws” means all applicable Laws prohibiting corruption, fraud, bribery, money laundering, inaccurate books and records, and inadequate controls, including the Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, and applicable Laws of countries implementing the OECD Convention on Combating Bribery of Foreign Officials.

“Available SPAC Cash” has the meaning specified in Section 9.3(c).

“Aviation Authority” means any Governmental Authority that is vested with the control and supervision of, or has jurisdiction over, the registration, airworthiness, design, production, operation, or maintenance of any aircraft, the safety certification or regulation of air carriers, the offering or sale of air transportation, or other matters relating to civil aviation within the jurisdiction where the aircraft is operated or the air carrier has its safety certification, including the Federal Aviation Administration (“FAA”), the United States Department of Transportation (“DOT”), the Civil Aviation Authority of the United Kingdom (“CAA”), Transport Malta – Civil Aviation Directorate (“TM-CAD”), the Italian Civil Aviation Authority (“ENAC”) and the European Union Aviation Safety Agency (“EASA”).

“Base Purchase Price” means $2,406,049,000.

“Benefit Plan” means an “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, or any other plan, policy, program or agreement (including any employment, consulting, bonus, profit-sharing, compensation, pension, retirement, “401(k),” savings, fringe benefit, insurance, welfare, post-retirement health or welfare benefit, health, life tuition refund, service award, company car or car allowance, scholarship, housing or living allowances, relocation, disability, accident, sick pay, sick leave, accrued leave, vacation, holiday, termination, unemployment, executive compensation, commission, incentive or deferred compensation, employee loan, note or pledge agreement, equity or equity-based compensation, severance, retention, supplemental retirement, change in control or similar plan, policy, program or agreement) providing compensation or other benefits to any current or former director, officer, consultant, individual independent contractor, worker or employee, in each case whether or not (i) subject to the Laws of the United States, (ii) in writing, (iii) formal or informal, or (iv) funded, but excluding in each case any statutory plan, program or arrangement that is required to be maintained under applicable law or any Governmental Authority.

“Business Combination” has the meaning specified in Article 1 of SPAC’s Organizational Documents as in effect on the date hereof.

5 

“Business Combination Proposal” means any offer, inquiry, proposal or indication of interest (whether written or oral, binding or non-binding, and other than an offer, inquiry, proposal or indication of interest with respect to the Transactions), relating to a Business Combination.

“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York or Governmental Authorities in the Cayman Islands (for so long as SPAC remains domiciled in Cayman Islands) are authorized or required by Law to close.

“Cayman Act” has the meaning specified in the Preamble hereto.

“Cayman Registrar” means the Cayman Islands Registrar of Companies.

“Change in Recommendation” has the meaning specified in Section 8.2(b)(iii).

“Class I Directors” has the meaning specified in Section 8.6(c)(i).

“Class II Directors” has the meaning specified in Section 8.6(c)(ii).

“Class III Directors” has the meaning specified in Section 8.6(c)(iii).

“Closing” has the meaning specified in Section 2.5(a).

“Closing Date” has the meaning specified in Section 2.5(a).

“Code” means the United States Internal Revenue Code of 1986.

“Collective Bargaining Agreement” means any collective bargaining agreement or any other labor-related agreement or arrangement with any labor or trade union, employee representative body, works council or Labor Organization, in each case to which Epic is party or by which it is bound.

“Company” has the meaning specified on Schedule 1.1.

“Company Capital Stock” means the shares of the Company Common Stock and the Company Preferred Stock.

“Company Common Stock” means the common stock, par value $0.001 per share, of the Company.

“Company Cure Period” has the meaning specified in Section 10.1(f).

“Company Group” has the meaning specified in Section 11.17(b).

“Company Merger” has the meaning specified in the Recitals hereto.

“Company Merger Certificate” has the meaning specified in Section 2.2(b).

“Company Merger Effective Time” has the meaning specified in Section 2.2(b).

“Company Merger Intended Tax Treatment” has the meaning specified in the Recitals hereto.

“Company Option” means an option to purchase shares of Company Common Stock.

“Company Preferred Stock” means the shares of preferred stock, par value $0.001 per share, of the Company.

“Company Support Agreement” has the meaning specified in the Recitals.

6 

“Company Transaction Expenses” means, as of any determination date, the aggregate amount of out-of-pocket fees, costs, expenses, commissions or other amounts incurred by or on behalf of, and that are paid or payable by, the Target Companies or any of their respective Subsidiaries (whether or not billed or accrued for) as a result of or in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Agreement, the performance of its covenants or agreements in this Agreement or any Ancillary Agreement or the consummation of the Transactions (including due diligence) or the Target Companies’ or any of their respective Subsidiaries’ pursuit of the Transactions, including: (a) all fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers; (b) any payments to stockholders of the Target Companies contemplated by this Agreement (including the Secondary Proceeds and such amounts as set forth in Schedule 1.2); and (c) any other reasonable and documented out-of-pocket fees and expenses as a result of or in connection with the negotiation, documentation and consummation of the Transactions.

“Confidentiality Agreement” means the Mutual Confidentiality Letter Agreement, dated August 4, 2022, by and between SPAC and Epic.

“Contracts” means any legally binding contracts, agreements, subcontracts, leases, and purchase orders.

“COVID-19” means SARS-CoV-2 or COVID-19, which was declared a Public Health Emergency of International Concern by the World Health Organization on January 30, 2020, and any evolutions or mutations thereof (including any related strains or sequences), or any related or associated epidemics, pandemics, disease outbreaks or public health emergencies.

“COVID-19 Action” means an inaction or action by a Target Company, including the establishment of any policy, procedure or protocol in response to COVID-19 or any COVID-19 Measures, that is (i) consistent with the reasonable actions taken by such Target Company in response to COVID-19 prior to the date of this Agreement (but only to the extent in compliance with applicable Law), (ii) materially consistent with how a similarly situated business, in the industries or the locations in which the Target Companies and their Subsidiaries operate, would reasonably act or refrain from acting, or (iii) approved in advance, in writing, by SPAC.

“COVID-19 Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down (including, the shutdown of air transport and cargo routes, shut down of foodservice or certain business activities), closure (including business and border closures), sequester, safety or similar Law, directive, guidelines or recommendations promulgated by any industry group or Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19, including the CARES Act, Families First Act, the Payroll Tax Executive Order and IRS Notices 2020-22, 2020-65 and 2021-11.

“D&O Indemnified Parties” has the meaning specified in Section 8.7(a).

“Data Processor” means a natural or legal Person, public authority, agency or other body that Processes Personal Data on behalf of or at the direction of Epic or its Subsidiaries.

“Designated Courts” has the meaning specified in Section 11.16(a).

“DGCL” has the meaning specified in the Recitals hereto.

“Directional” means Directional Capital LLC.

“Disclosure Letter” means, as applicable, the Epic Disclosure Letter or SPAC Disclosure Letter.

“Dissenting Shares” has the meaning specified in Section 3.6.

7 

“DLLCA” has the meaning specified in the Recitals hereto.

“Dollars” or “$” means lawful money of the United States.

“Eldridge” means Eldridge Industries, LLC or any applicable Affiliate thereof, as the context requires.

“Eldridge Back-Stop” has the meaning specified in the Recitals.

“Eldridge Back-Stop Amount” has the meaning specified in the Recitals.

“Eldridge Back-Stop Letter Agreement” has the meaning specified in the Recitals.

“Eldridge Back-Stop Subscription Agreement” means the subscription agreement to be entered into by and between Flexjet and Eldridge pursuant to the terms of, and on the conditions set forth in, the Eldridge Back-Stop Letter Agreement.

“Elected SPAC Convertible Note Amount” has the meaning specified in Section 3.1(e).

“Employee Agreements” means the written agreements entered into prior to the Closing, by and between Flexjet and each of the Key Employees, each in a form to be mutually agreed upon between SPAC, Flexjet and the respective Key Employee party thereto.

“Environmental Laws” means any and all applicable Laws relating to Hazardous Materials, pollution, or the protection or management of the environment or natural resources, or human health and safety (with respect to exposure to Hazardous Materials), including Laws relating to the handling, manufacturing, processing, disposal, recycling, remediation, monitoring, labeling, use, generation, transportation, disposal, Release or threatened Release of, or exposure to, Hazardous Materials.

“Epic” has the meaning specified in the Preamble hereto.

“Epic Aviation Permits” has the meaning specified in Section 4.11(d).

“Epic Benefit Plan” means a Benefit Plan that is sponsored, maintained or contributed to, or is required to be contributed to, by Epic or any of its Subsidiaries for the benefit of any current or former director, officer, consultant, individual independent contractor, worker or employee of Epic or his or her dependents or beneficiaries, or for which Epic or any of its Subsidiaries has liability, contingent or otherwise.

“Epic Capital Stock” means the shares of Epic Common Stock and Epic Preferred Stock.

“Epic Common Stock” means the shares of common stock, par value $0.001 per share, of Epic.

“Epic Data” means all confidential data, information, and data compilations contained in the IT Systems or any databases of Epic and its Subsidiaries, including Personal Data, that are used by, or necessary to the business of, Epic and its Subsidiaries.

“Epic Disclosure Letter” has the meaning specified in the introduction to Article IV.

“Epic Employee” means an employee of Epic or any of its Subsidiaries.

8 

“Epic Financial Statements” means, collectively, the audited consolidated balance sheet and consolidated statements of operations, comprehensive income, statements of equity and cash flows of Epic and its Subsidiaries for the twelve-month period ended December 31, 2020; (ii) the audited consolidated balance sheet and consolidated statements of operations, comprehensive income, statements of equity and cash flows of Epic and its Subsidiaries for the twelve-month period ended December 31, 2021; and (iii) the unaudited consolidated balance sheets and statements of operations, comprehensive income, equity, and cash flows of Epic and its Subsidiaries as of and for the six month period ending June 30, 2022 (in the case of each of (i) through (iii), together with the notes, if any, relating thereto).

“Epic Fundamental Representations” means the representations and warranties made pursuant to the first and second sentences of Section 4.1 (Organization), the first, second and third sentences of Section 4.2 (Subsidiaries and Target Companies), Section 4.3 (Due Authorization), Section 4.4(a) (No Conflicts with Organizational Documents), Section 4.6 (Capitalization of Epic) and Section 4.26 (Brokers’ Fees).

“Epic Incentive Plan” means the Epic 2020 Stock Option Plan, as amended from time to time.

“Epic Lead Investor” means, collectively, Epic Preferred Holdings LLC, Epic Preferred Holdings II LLC, and Eldridge EA Holdings, LLC.

“Epic Material Adverse Effect” means, solely with respect to the Target Companies and their respective Subsidiaries, taken as a whole, any event, development, occurrence, state of facts, change, circumstance or effect (collectively, “Events”) that (A) has had, or would reasonably be expected to have, individually or in the aggregate with all other Events, a material adverse effect on the business, results of operations or financial condition of the Target Companies and their respective Subsidiaries, taken as a whole or (B) would reasonably be expected to prevent, materially delay or materially impede the ability of the Target Companies to consummate the Mergers or any of the other Transactions; provided, however, that in no event would any of the following, alone or in combination with other Events, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “Epic Material Adverse Effect”: (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally; (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism; (iii) changes in conditions of the economic, business, financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country or changes in exchange rates for the currencies of any countries or changes in prices of any security or market index or commodity or any disruption of such markets; (iv) any change in applicable Laws, including the introduction of new Laws, or GAAP or any interpretation thereof, in each case, following the date of this Agreement; (v) the taking of any action expressly required or expressly permitted by this Agreement or actions expressly required or expressly permitted to not be taken pursuant to this Agreement; (vi) any natural or man-made disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions, tsunami, natural disaster, mudslides, wild fires or similar occurrences), epidemic, pandemic (including COVID-19), disease outbreak, public health emergency or change in climate or comparable events in the United States or any other country or region in the world, or any escalation or worsening of the foregoing; (vii) any acts of terrorism, acts of God or war, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions or comparable events in the United States or any other country or region in the world, or any escalation or worsening of the foregoing; (viii) any failure of any of the Target Companies or any of their respective Subsidiaries to meet any projections or forecasts (provided, that this clause (viii) shall not prevent a determination that any Event not otherwise excluded from this definition of Epic Material Adverse Effect, underlying such failure to meet projections or forecasts, has resulted in an Epic Material Adverse Effect); (ix) any Events generally applicable to the industries or markets in which any of the Target Companies or any of their respective Subsidiaries operate (including increases in the cost of products, supplies, materials or other goods purchased from third-party suppliers); (x) the execution or announcement of this Agreement and pendency or consummation of the Transactions, or any termination of, reduction in or similar adverse impact (in each case, to the extent attributable to such execution, announcement or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of any Target Company or any Subsidiary of a Target Company; or (xi) any action or inaction taken by, or at the written request or with the written approval or consent of, SPAC or Merger Sub 1; or (xii) any Event that is (to the extent specifically disclosed) set forth on the Epic Disclosure Letter (provided that this clause (xii) shall not prevent a determination that any Event occurring, discovered, or that becomes known (including any worsening of any such Event disclosed in the Epic Disclosure Letter) after the date hereof in connection with any such Event disclosed in the Epic Disclosure Letter constitutes an Epic Material Adverse Effect); provided, further, that any Event referred to in clauses (i) through (iv), (vi), (vii) or (ix) above may be taken into account in determining if an Epic Material Adverse Effect has occurred to the extent it has a disproportionate and adverse effect on the business, results of operations or financial condition of the Target Companies and their Subsidiaries, taken as a whole, relative to similarly situated companies in the industry in which the Target Companies or their Subsidiaries operate, but only to the extent of such disproportionate effect on the Target Companies and their Subsidiaries, taken as a whole; and provided, further, that for the avoidance of doubt, a crash, inflight accident or malfunction or other similar operational event, in each case, involving any vehicle operated by any Target Company or any of its Affiliates will not be considered to constitute an Epic Material Adverse Effect solely by virtue of its occurrence, but that any such Event may be considered to constitute an Epic Material Adverse Effect if the Event actually results in a material adverse effect on the business, results of operations or financial condition of the Target Companies and their respective Subsidiaries, taken as a whole.

9 

“Epic Option” means an option to purchase shares of Epic Common Stock granted under the Epic Incentive Plan.

“Epic Owned IP” means any Intellectual Property that is owned or purported to be owned, in whole or in part, by Epic or any of its Subsidiaries.

“Epic Preferred Stock” means the shares of preferred stock, par value $0.001 per share, of Epic.

“Epic Privacy Policies” means any published past or present data protection, data usage, and privacy policies of Epic or its Subsidiaries.

“Epic Registered Intellectual Property” has the meaning specified in Section 4.17(a).

“Epic Series D-1 Preferred Stock” has the meaning specified in Section 4.6(a).

“Epic Series D-2 Preferred Stock” has the meaning specified in Section 4.6(a).

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any Affiliate or business, whether or not incorporated, that together with the Company or Epic would be deemed to be a “single employer” within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“Exchange Act” means the Securities Exchange Act of 1934.

“Exchange Agent” has the meaning specified in Section 3.3(a).

“Exchange Agreement” has the meaning specified in the Recitals.

“Exchange Intended Tax Treatment” has the meaning specified in the Recitals hereto.

“Exchange Ratio” means the quotient obtained by dividing (a) the number of shares constituting the Aggregate Merger Consideration, by (b) the number of Aggregate Fully Diluted Company Common Shares.

10 

“Excluded Company Common Shares” has the meaning specified in Section 3.2(b)(i).

“Export Approvals” has the meaning specified in Section 4.23(a).

“First Amended and Restated Flexjet Bylaws” has the meaning specified in Section 2.7(a).

“First Amended and Restated Flexjet Charter” has the meaning specified in Section 2.7(a).

“Flexjet” has the meaning specified in the Preamble hereto.

“Flexjet Assumed Private $11.50 Warrant” means a warrant to purchase one share of Flexjet Common Stock with the same terms as the Horizon Private $11.50 Warrants (other than the fact that it is issued by Flexjet, is exercisable for Flexjet Common Stock and is subject to the Flexjet Assumed Warrant Agreement).

“Flexjet Assumed Public $11.50 Warrant” means a warrant to purchase one share of Flexjet Common Stock with the same terms as the SPAC $11.50 Public Warrants (other than the fact that it is issued by Flexjet, is exercisable for Flexjet Common Stock and is subject to the Flexjet Assumed Warrant Agreement).

“Flexjet Assumed Warrant Agreement” means that warrant agreement that will govern the Flexjet Assumed Private $11.50 Warrants and the Flexjet Assumed Public $11.50 Warrants from and after the Closing.

“Flexjet Class A Common Stock” means Class A common stock, par value $0.0001 per share, of Flexjet prior to the adoption of the Second Amended and Restated Flexjet Charter.

“Flexjet Class B Common Stock” means Class B common stock, par value $0.0001 per share, of Flexjet prior to the adoption of the Second Amended and Restated Flexjet Charter.

“Flexjet Common Stock” means, (a) prior to the adoption of the Second Amended and Restated Flexjet Charter, Flexjet Class A Common Stock and Flexjet Class B Common Stock, and (b) from and following the adoption of the Second Amended and Restated Flexjet Charter, common stock, par value $0.0001 of Flexjet.

“Flexjet New Private $10.00 Warrants” has the meaning specified in the Recitals.

“Flexjet New Private $15.00 Warrants” has the meaning specified in the Recitals.

“Flexjet New Warrant Agreement” means a warrant agreement in substantially the form attached hereto as Exhibit F.

“Flexjet Option” has the meaning specified in Section 3.4(a).

“Fraud” means, with respect to a Party to this Agreement, the actual and intentional common law fraud with respect to the making by such Party of the representations and warranties pursuant to Article IV or Article V (as applicable); provided, that (and without limiting any of the other elements for establishing such common law fraud, including, without limitation, reasonable or justifiable reliance by the other Party on such representations and warranties) such actual and intentional fraud of such Party shall only be deemed to exist if any of the individuals included on Section 1.1 of the Epic Disclosure Letter (in the case of the Target Companies) or Section 1.1 of the SPAC Disclosure Letter (in the case of SPAC or Merger Sub 1) had actual knowledge (as opposed to imputed or constructive knowledge) that the representations and warranties made by such Person pursuant to, in the case of the Target Companies, Article IV as qualified by the Epic Disclosure Letter and subject to Section 11.11, or, in the case of SPAC or Merger Sub 1, Article V as qualified by the SPAC Disclosure Letter and subject to Section 11.11, were actually breached when made, with the express intention that the other Party to this Agreement rely thereon to its detriment.

11 

“GAAP” means generally accepted accounting principles in the United States as in effect from time to time.

“Government Official” means any (a) official or employee of a Governmental Authority, including elected officials, (b) private person acting on behalf of a Governmental Authority, even if only temporarily, (c) candidate for political office, (d) political party official, (e) official or employee of a state-owned entity, or (f) official, employee or representative of public international organizations, such as the World Bank or the United Nations.

“Governmental Authority” means any federal, state, provincial, municipal, local or foreign (a) government or governmental authority, (b) regulatory or administrative agency, (c) governmental commission, department, board, bureau, agency or instrumentality, or (d) court or tribunal.

“Governmental Order” means any order, judgment, injunction, temporary restraining order, decree, consent agreement, writ, stipulation, determination or award, in each case, entered by or with any Governmental Authority.

“Hazardous Material” means any (a) pollutant, contaminant, chemical, (b) industrial, solid, liquid or gaseous toxic or hazardous substance, material or waste, (c) petroleum or any fraction or product thereof, (d) asbestos or asbestos-containing material, (e) polychlorinated biphenyls, (f) chlorofluorocarbons, (g) per- and polyfluoroalkyl substances, (h) radioactive materials, and (i) any other substance, material or waste, in each case, which are regulated under any Environmental Law or as to which liability may be imposed pursuant to Environmental Law.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“Incentive Equity Plan” has the meaning specified in Section 8.8(a).

“Indebtedness” means with respect to any Person, without duplication, any obligations, contingent or otherwise, in respect of (a) the principal of and premium (if any) in respect of all indebtedness for borrowed money, including accrued interest and any per diem interest accruals, (b) the principal and interest components of capitalized lease obligations under GAAP, (c) amounts drawn (including any accrued and unpaid interest) on letters of credit, bank guarantees, bankers’ acceptances and other similar instruments (solely to the extent such amounts have actually been drawn), (d) the principal of and premium (if any) in respect of obligations evidenced by bonds, debentures, notes and similar instruments, (e) the termination value of interest rate protection agreements and currency obligation swaps, hedges or similar arrangements (without duplication of other indebtedness supported or guaranteed thereby), (f) the principal component of all obligations to pay the deferred and unpaid purchase price of property and equipment which have been delivered, including “earn outs” and “seller notes,” (g) breakage costs, prepayment or early termination premiums, penalties, or other fees or expenses payable as a result of the consummation of the Transactions in respect of any of the items in the foregoing clauses (a) through (f), and (h) all Indebtedness of another Person referred to in clauses (a) through (g) above guaranteed directly or indirectly, jointly or severally.

“Information Security Program” means a written information security program that complies with Privacy Requirements, that when appropriately implemented and maintained would constitute reasonable security procedures and practices appropriate to the nature of Personal Data and that includes administrative, technical, and physical safeguards to protect the security, confidentiality, availability, and integrity of any Personal Data.

“Initial Flexjet Interest” has the meaning specified in Section 2.1(a).

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“Initial Flexjet Interest Redemption Amount” has the meaning specified in Section 2.1(a).

“Insider Letters” has the meaning specified in the Recitals hereto.

“Intellectual Property” means all intellectual property and intellectual property rights of any kind and nature throughout the world, including U.S. and foreign rights in the following: (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof; (ii) trademarks, logos, service marks, trade dress, trade names, slogans, internet domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing; (iii) copyrights and copyrightable subject matter, including such corresponding rights in software and other works of authorship; (iv) trade secrets and all other confidential and proprietary information, know-how, proprietary processes, formulae, models, and methodologies (“Trade Secrets”); and (v) all applications and registrations, and any renewals, extensions and reversions, for the foregoing.

“Intended Tax Treatment” has the meaning specified in the Recitals hereto.

“Interim Period” has the meaning specified in Section 6.1.

“International Trade Laws” means all applicable Laws relating to the import, export, re-export, deemed export, deemed re-export, or transfer of information, software, data, goods, and technology, including, but not limited to, those Laws under the authority of the United States Department of Commerce, the United States Department of State, the United States Customs and Border Protection, the United States Department of Homeland Security, the United States Department of the Treasury, the International Traffic in Arms Regulations, the Arms Export Control Act, any other export or import controls administered by any agency of the United States government, the anti-boycott regulations administered by the United States Department of Commerce and the United States Department of the Treasury, and other applicable Laws adopted by Governmental Authorities of other countries, relating to the same subject matter as the United States Laws described above.

“Intervening Event” has the meaning specified in Section 8.2(b)(iii).

“Intervening Event Change in Recommendation” has the meaning specified in Section 8.2(b)(iii).

“Investment Company Act” means the Investment Company Act of 1940.

“IPO” has the meaning set forth in Section 11.1.

“IRS” means Internal Revenue Service.

“IT Systems” mean the hardware, software, firmware, middleware, equipment, electronics, platforms, servers, workstations, routers, hubs, switches, interfaces, data, databases, data communication lines, network and telecommunications equipment, websites and Internet-related information technology infrastructure, wide area network and other data communications or information technology equipment, owned, leased, or used by Epic or its Subsidiaries in the conduct of the business of Epic or its Subsidiaries.

“JOBS Act” has the meaning specified in Section 5.7(a).

“Key Employee” means each of Kenn Ricci, Michael Rossi, Michael Silvestro and Andrew Collins.

“Knowledge of Epic” means the actual knowledge of the individuals identified in Section 1.1 of the Epic Disclosure Letter have after reasonably inquiry of their direct internal reports.

“Knowledge of SPAC” means the actual knowledge of the individuals identified in Section 1.1 of the SPAC Disclosure Letter have after reasonably inquiry of their direct internal reports.

13 

“Labor Organization” has the meaning specified in Section 4.14(a).

“Law” means any statute, act, law, including principles of common law, constitution, treaty, code, ordinance, rule, regulation or Governmental Order, in each case, of any Governmental Authority. All references to “Law” shall be deemed to include any amendments thereto, and any successor Law, unless the context otherwise requires.

“Leased Real Property” means all real property leased, licensed, occupied or subleased by Epic or any of its Subsidiaries.

“Legal Proceedings” has the meaning specified in Section 4.10.

“Licenses” means any approvals, authorizations, consents, licenses, registrations, permits, exemptions, certifications, or certificates of a Governmental Authority.

“Lien” means all liens, mortgages, deeds of trust, pledges, hypothecations, encumbrances, encroachments, easements, security interests, options, title defects, restrictions, rights of way, licenses, options, claims or other liens of any kind whether consensual, statutory or otherwise.

“Merger Sub 1” has the meaning specified in the Preamble hereto.

“Merger Sub 2” has the meaning specified in the Preamble hereto.

“Mergers” means the SPAC Merger and Company Merger.

“Multiemployer Plan” has the meaning specified in Section 4.13(c).

“Non-Party Affiliate” has the meaning specified in Section 11.2.

“NYSE” means the New York Stock Exchange.

“OneSky” means OneSky Flight, LLC, a Delaware limited liability company and wholly-owned Subsidiary of Epic.

“Open Source License” means any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license, including any license approved by the Open Source Initiative or any Creative Commons License.

“Organizational Documents” means the legal document(s) by which any Person (other than an individual) establishes its legal existence or which govern its internal affairs. For example, the “Organizational Documents” of a corporation are its certificate or articles of incorporation and bylaws, the “Organizational Documents” of a limited partnership are its limited partnership agreement and certificate or articles of limited partnership, the “Organizational Documents” of a limited liability company are its operating agreement and certificate or articles of formation and the “Organizational Documents” of an exempted company are its memorandum and articles of association.

“Original RRA” has the meaning specified in the Recitals hereto.

“Party” and “Parties” has the meaning specified in the Preamble hereto.

“Per Share Merger Consideration” means the product obtained by multiplying (i) the Exchange Ratio by (ii) $10.00.

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“Permitted Liens” means (i) mechanics’, materialmen’s and similar Liens arising in the ordinary course of business with respect to any amounts (A) not yet due and payable or which are being contested in good faith through appropriate proceedings and (B) for which adequate accruals or reserves have been established in accordance with GAAP, (ii) Liens for Taxes (A) not yet due and payable or which are being contested in good faith through appropriate proceedings and (B) for which adequate accruals or reserves have been established in accordance with GAAP, (iii)  with respect to any Leased Real Property (A) the interests and rights of the respective lessors with respect thereto, including any Lien on the lessor’s interest therein and statutory landlord Liens securing payments not yet due, and (B) any Liens encumbering the underlying fee title of the real property of which the Leased Real Property is a part, (iv) zoning, building, entitlement and other land use or environmental regulations promulgated by any Governmental Authority that do not materially interfere with the current use of, or materially impair the value of, the Leased Real Property and are not violated in any material respect by the current use of the Leased Real Property by any of the Target Companies or any of their respective Subsidiaries, (v)  non-exclusive licenses of Intellectual Property granted in the ordinary course of business, (vi) ordinary course purchase money Liens and Liens securing rental payments under operating or capital lease arrangements for amounts not yet due or payable, (vii) other Liens arising in the ordinary course of business and not incurred in connection with the borrowing of money in connection with workers’ compensation, unemployment insurance or other types of social security, (viii) reversionary rights in favor of landlords under any Real Property Leases with respect to any of the buildings or other improvements owned by any of the Target Companies or any of their respective Subsidiaries, (ix) Liens that would be apparent from a physical inspection or current accurate survey of the Leased Real Property that do not materially interfere with the current use of, or materially impair the value of, the Leased Real Property, or (x) Liens that do not have an Epic Material Adverse Effect.

“Person” means any individual, firm, corporation, partnership, limited partnership, limited liability company, incorporated or unincorporated association, joint venture, joint stock company, Governmental Authority or any political subdivision, agency or instrumentality or other entity of any kind.

“Personal Data” means (a) information relating to or reasonably capable of being associated with an identified or identifiable person; or (b) “personal data,” “personal information,” “protected health information,” “nonpublic personal information,” or other similar terms as defined by Privacy Requirements.

“PIPE Investment” has the meaning specified in the Recitals hereto.

“PIPE Investment Amount” means the aggregate gross purchase price received by Flexjet for the shares of Flexjet Common Stock issued in the PIPE Investment (including, if necessary, the Eldridge Back-Stop) substantially concurrently with Closing.

“PIPE Investors” means those certain investors participating in the PIPE Investment pursuant to the Subscription Agreements.

“Pre-Closing Acquisition” has the meaning specified on Schedule 1.1.

“Pre-Closing Divestiture” has the meaning specified on Schedule 1.1.

“Pre-Closing Management Grants” means the pre-Closing grants of Company Common Stock made to Kenn Ricci and Michael Rossi as disclosed on Section 4.13(i) of the Epic Disclosure Letter.

“Pre-Closing Reorganization” means the transactions described on Schedule 1.1.

“Privacy Requirements” means any and all Laws and Contracts relating to the protection or Processing of Personal Data that are applicable to the Target Companies or any of their respective Subsidiaries.

“Processing,” “Process,” or “Processed” means any collection, access, acquisition, storage, protection, use, recording, maintenance, operation, dissemination, re-use, disposal, disclosure, re-disclosure, deletion, destruction, sale, transfer, modification, or any other processing (as defined by Privacy Requirements).

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“Proxy Statement/Prospectus” has the meaning specified in Section 8.2(a)(i).

“Real Property Leases” has the meaning specified in Section 4.16(a)(ii).

“Registration Rights Agreement” has the meaning specified in the Recitals.

“Registration Statement” has the meaning specified in Section 8.2(a)(i).

“Regulatory Filings” has the meaning specified in Section 8.1(a).

“Release” shall mean any release, spill, emission, leaking, pumping, pouring, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into or through the indoor or outdoor environment or into or out of any property, including the movement of Hazardous Materials through or in the air, soil, surface water, or groundwater.

“Representatives” means, with respect to any Person, such Person’s Affiliates and its and their respective professional advisors, directors, officers, members, managers, equityholders, partners, employees, agents and authorized representatives.

“Required Actions” has the meaning specified in Section 6.11.

“Sanctioned Country” means at any time, a country or territory that is itself the subject or target of any country-wide or territory-wide Sanctions Laws (at the time of this Agreement, the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, and Crimea regions of Ukraine, Cuba, Iran, North Korea and Syria).

“Sanctioned Person” means (i) any Person that is the target of any sanctions administered or enforced by: (a) the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United States Department of Commerce’s Bureau of Industry and Security, or the United States Department of State; (b) Her Majesty’s Treasury of the United Kingdom; (c) the United Nations Security Council; (d) the European Union or any European Union member state; or (e) any other relevant sanctions authority, (ii) any Person located, organized, or resident in, or a Governmental Authority or government instrumentality of, any Sanctioned Country, or (iii) any Person directly or indirectly owned or controlled by, or acting for the benefit or on behalf of, a Person described in clause (i) or (ii), either individually or in the aggregate.

“Sanctions Laws” means those trade, economic and financial sanctions Laws administered, enacted or enforced from time to time by (i) the United States (including OFAC, the Department of Commerce, and the Department of State), (ii) the European Union or its member states, (iii) the United Nations Security Council, (iv) Her Majesty’s Treasury of the United Kingdom; or (v) any other relevant sanctions authority.

“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

“SEC” means the United States Securities and Exchange Commission.

“Second Amended and Restated Flexjet Bylaws” has the meaning specified in Section 2.7(c).

“Second Amended and Restated Flexjet Charter” has the meaning specified in Section 2.7(c).

“Secondary Proceeds” means the aggregate redemption price paid or payable to holders of Series D-2 Shares (as defined in Schedule 1.1) pursuant to the Series D-2 Redemption.

“Securities Act” means the United States Securities Act of 1933.

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“Security Incident” means any material unauthorized Processing of Epic Data, any material unauthorized access to Epic’s IT Systems, or any incident that requires notification to any Person, Governmental Authority, or any other entity under Privacy Requirements.

“Series D-2 Redemption” has the meaning specified in Schedule 1.1.

“Sidley” has the meaning specified in Section 11.17(a).

“Sidley Privileged Communications” has the meaning specified in Section 11.17(a).

“SPAC” has the meaning specified in the Preamble hereto.

“SPAC Board” means the Board of Directors of SPAC.

“SPAC Business Combination Deadline” has the meaning specified in Section 7.7.

“SPAC Class A Common Stock” means Class A ordinary shares, par value $0.0001 per share, of SPAC.

“SPAC Class A Merger Consideration” has the meaning specified in Section 3.1(c).

“SPAC Class B Common Stock” means Class B ordinary shares, par value $0.0001 per share, of SPAC.

“SPAC Class B Merger Consideration” has the meaning specified in Section 3.1(d).

“SPAC Common Stock” means SPAC Class A Common Stock and SPAC Class B Common Stock.

“SPAC Convertible Notes” means the Sponsor Promissory Note, the Vista Promissory Note and any other similar note or similar instrument delivered by SPAC prior to the SPAC Merger Effective Time.

“SPAC Convertible Notes Redemption Amount” means an amount equal to the principal amount outstanding of a SPAC Convertible Note minus the Elected SPAC Convertible Note Amount with respect to such SPAC Convertible Note pursuant to Section 3.1(e).

“SPAC Cure Period” has the meaning specified in Section 10.1(g).

“SPAC Disclosure Letter” has the meaning specified in the introduction to Article V.

“SPAC Financial Statements” has the meaning specified in Section 5.7(d).

“SPAC Fundamental Representations” means the representations and warranties made pursuant to the first and second sentences of Section 5.1 (Organization), Section 5.2 (Due Authorization), Section 5.3(a) (No Conflicts with Organizational Documents), Section 5.14 (Capitalization of SPAC) and Section 5.15 (Brokers’ Fees).

“SPAC Group” has the meaning specified in Section 11.17(a).

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“SPAC Material Adverse Effect” means, with respect to SPAC and its Subsidiaries, taken as a whole, any Event that (A) has had, or would reasonably be expected to have, individually or in the aggregate with all other Events, a material adverse effect on the business, results of operations or financial condition of SPAC and its Subsidiaries taken as a whole or (B) would reasonably be expected to prevent, materially delay or materially impede ability of SPAC to consummate the Mergers or any of the other Transactions; provided, however, that in no event would any of the following, alone or in combination with other Events, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “SPAC Material Adverse Effect”: (i) general business or economic conditions in or affecting the United States, or changes therein, or the global economy generally; (ii) any national or international political or social conditions in the United States or any other country, including the engagement by the United States or any other country in hostilities, whether or not pursuant to the declaration of a national emergency or war, or the occurrence in any place of any military or terrorist attack, sabotage or cyberterrorism; (iii) changes in conditions of the economic, business, financial, banking, capital or securities markets generally in the United States or any other country or region in the world, or changes therein, including changes in interest rates in the United States or any other country or changes in exchange rates for the currencies of any countries or changes in prices of any security or market index or commodity or any disruption of such markets; (iv) any change in applicable Laws or GAAP or any interpretation thereof, in each case, following the date of this Agreement; (v) the taking of any action expressly required or expressly permitted by this Agreement or actions expressly required or expressly permitted to not be taken pursuant to this Agreement; (vi) any natural or man-made disaster (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions, tsunami, natural disaster, mudslides, wild fires or similar occurrences), epidemic, pandemic (including COVID-19), disease outbreak, public health emergency or change in climate or comparable events in the United States or any other country or region in the world, or any escalation or worsening of the foregoing; (vii) any acts of terrorism, acts of God or war, the outbreak or escalation of hostilities, geopolitical conditions, local, national or international political conditions or comparable events in the United States or any other country or region in the world, or any escalation or worsening of the foregoing; (viii) the execution or announcement of this Agreement and pendency or consummation of the Transactions or any termination of, reduction in or similar adverse impact (in each case, to the extent attributable to such announcement or consummation) on relationships, contractual or otherwise, with any landlords, customers, suppliers, distributors, partners or employees of SPAC; (ix) any action or inaction taken by, or at the written request or with the written approval or consent of, the Company; or (x) any Event that is (to the extent specifically disclosed) set forth on the SPAC Disclosure Letter (provided that this clause (x) shall not prevent a determination that any Event occurring, discovered, or that becomes known (including any worsening of any such Event disclosed in the SPAC Disclosure Letter) after the date hereof in connection with any such Event disclosed in the SPAC Disclosure Letter constitutes a SPAC Material Adverse Effect).

“SPAC Merger” has the meaning specified in the Recitals.

“SPAC Merger Certificate” has the meaning specified in Section 2.1(b).

“SPAC Merger Effective Time” has the meaning specified in Section 2.1(b).

“SPAC Merger Intended Tax Treatment” has the meaning specified in the Recitals.

“SPAC Plan of Merger” has the meaning specified in Section 2.1(b).

“SPAC Private $11.50 Warrant” means those warrants that were purchased by Sponsor in a private placement that occurred simultaneously with the completion of the IPO and are subject to the SPAC Warrant Agreement.

“SPAC Prospectus” has the meaning specified in Section 11.1.

“SPAC Public $11.50 Warrant” means those warrants that were part of the units issued as part of the IPO and are subject to the SPAC Warrant Agreement.

“SPAC SEC Filings” has the meaning specified in Section 5.6.

“SPAC Securities” has the meaning specified in Section 5.14(a).

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“SPAC Share Redemption” means the election of an eligible (as determined in accordance with SPAC’s Organizational Documents) holder of SPAC Class A Common Stock, to redeem all or a portion of the shares of SPAC Class A Common Stock held by such holder, at a per-share price, payable in cash, equal to a pro rata share of the aggregate amount on deposit in the Trust Account (including any interest earned on the funds held in the Trust Account) (as determined in accordance with SPAC’s Organizational Documents) in connection with the Transaction Proposals or an extension of the SPAC Business Combination Deadline.

“SPAC Shareholder Approval” means the approval of (i) those Transaction Proposals identified in clauses (A) and (B) of Section 8.2(b)(ii), in each case, by special resolution under Cayman Islands Law, being an affirmative vote of the holders of a majority of at least two-thirds of the outstanding shares of SPAC Common Stock entitled to vote, who attend and vote thereupon (as determined in accordance with SPAC’s Organizational Documents) at a SPAC Shareholders’ Meeting, (ii) those Transaction Proposals identified in clauses (C) and (D) of Section 8.2(b)(ii), in each case, by an ordinary resolution under Cayman Islands Law, being an affirmative vote of the holders of at least a majority of the outstanding shares of SPAC Common Stock entitled to vote, who attend and vote thereupon (as determined in accordance with SPAC’s Organizational Documents), and (iii) with respect to any other proposal proposed to the SPAC Shareholders, the requisite approval required under SPAC’s Organizational Documents, the Cayman Islands Companies Act or any other applicable Law, in each case, at a SPAC Shareholders’ Meeting.

“SPAC Shareholders” means the shareholders of SPAC as at any particular reference time.

“SPAC Shareholders’ Meeting” has the meaning specified in Section 8.2(b)(i).

“SPAC Surviving Sub” has the meaning specified in Section 2.1(a).

“SPAC Transaction Expenses” means, as of any determination date, the aggregate amount of out-of-pocket fees, costs, expenses, commissions or other amounts incurred by or on behalf of, and that are paid or payable by, SPAC or any of its Subsidiaries (whether or not billed or accrued for) as a result of or in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Agreement, the performance of its covenants or agreements in this Agreement or any Ancillary Agreement or the consummation of the Transactions, including: (a) all documented fees, costs, expenses, brokerage fees, commissions, finders’ fees and disbursements of financial advisors, investment banks, data room administrators, attorneys, accountants and other advisors and service providers; (b) Transfer Taxes; (c) the Back-Stop Commitment Fee (as defined in the Eldridge Back-Stop Letter Agreement) and (d) any other reasonable and documented out-of-pocket fees and expenses as a result of or in connection with the negotiation, documentation and consummation of the Transactions. Notwithstanding anything to the contrary herein, SPAC Transaction Expenses shall not include any fees and expenses of SPAC Shareholders or, for the avoidance of doubt, any fees or expenses paid or payable with the proceeds of Working Capital Loans, or the portion of Working Capital Loans evidenced by the SPAC Convertible Notes that the holders thereof elected to convert in accordance with Section 3.1(e).

“SPAC Warrant Agreement” means the Warrant Agreement, dated as of October 22, 2020, between SPAC and Continental Stock Transfer & Trust Company, as warrant agent.

“SPAC Warrants” means the SPAC Private $11.50 Warrants and the SPAC Public $11.50 Warrants.

“Sponsor” has the meaning specified in the Recitals.

“Sponsor Exchange” has the meaning specified in the Recitals.

“Sponsor Promissory Note” means that certain Promissory Note, dated as of September 19, 2022, issued to SPAC by Sponsor in the principal amount of $300,000 as a Working Capital Loan for the purpose of financing costs incurred in connection with a Business Combination.

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“Stockholders Agreement” has the meaning specified in the Recitals hereto.

“Subscription Agreements” means the subscription agreements pursuant to which the PIPE Investment will be consummated, including, if necessary, the Eldridge Back-Stop Subscription Agreement, in each case, in a form mutually satisfactory to the Target Companies and SPAC.

“Subsidiary” means, with respect to a Person, a corporation or other entity of which at least forty-nine percent (49%) of the voting power of the equity securities or equity interests is owned, directly or indirectly, by such Person.

“Support and Non-Redemption Agreement” means that certain Support and Non-Redemption Agreement, dated as of the date hereof, by and among the Sponsor, SPAC Epic and Flexjet.

“Surviving Corporation” has the meaning specified in Section 2.2(a).

“Target Companies” means (i) Epic, (ii) prior to the consummation of the SPAC Merger, Flexjet and Merger Sub 2 and (iii) upon the Company’s execution of a joinder to this Agreement, the Company.

“Target Company Securityholder Approval” means the approval of this Agreement and the transactions contemplated hereby, including the Mergers and the transactions contemplated thereby, by (a) for the Company, the affirmative vote or written consent of (i) at least a majority of the voting power of the holders of the then-outstanding Company Capital Stock, voting as a single class and on an as-converted basis, pursuant to the terms and in accordance with the Company’s Organizational Documents and Section 251(c) of the DGCL, (ii) at least a majority of the voting power of the holders of the then-outstanding Company Preferred Stock, voting as a single class and in accordance with the Company’s Organizational Documents, and (iii) a written election by the Epic Lead Investor that the Mergers and the Transactions do not constitute a Liquidation under the Company’s Organizational Documents and (b) for Merger Sub 2, Flexjet.

“Target Company Securityholder Meeting” has the meaning set forth in Section 6.8.

“Tax Return” means any return, declaration, report, statement, information statement or other document filed or required to be filed with any Governmental Authority with respect to Taxes, including any claims for refunds of Taxes, any information returns and any schedules, attachments, amendments or supplements of any of the foregoing.

“Taxes” means any and all federal, state, local, foreign or other taxes imposed by any Governmental Authority, including all income, gross receipts, license, payroll, recapture, net worth, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, ad valorem, value added, inventory, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, governmental charges, duties, levies and other similar charges imposed by a Governmental Authority in the nature of a tax, alternative or add-on minimum, or estimated taxes, and including any interest, penalty, or addition thereto.

“Terminating Company Breach” has the meaning specified in Section 10.1(f).

“Terminating SPAC Breach” has the meaning specified in Section 10.1(g).

“Title IV Plan” has the meaning specified in Section 4.13(c).

“Trade Secrets” has the meaning specified in the definition of “Intellectual Property.”

“Transaction Proposals” has the meaning specified in Section 8.2(b)(ii).

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“Transactions” means, collectively, the Sponsor Exchange, the SPAC Merger, the Company Merger, the PIPE Investment (including the Eldridge Back-Stop), the Pre-Closing Reorganization, and the other transactions contemplated by this Agreement and the Ancillary Agreements.

“Transfer Taxes” has the meaning specified in Section 8.4.

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of the Treasury (whether in final, proposed or temporary form).

“Treasury Share” has the meaning specified in Section 3.2(b)(i).

“Trust Account” has the meaning specified in Section 11.1.

“Trust Agreement” means the Investment Management Trust Agreement, dated as of October 19, 2020, between SPAC and the Trustee.

“Trustee” means Continental Stock Transfer & Trust Company.

“U.S.” means the United States of America.

“Updated Financial Statements” has the meaning specified in Section 6.4(a).

“Vista” means Vista Portfolio Trust, LLC, a Delaware limited liability company and Affiliate of Sponsor.

“Vista Promissory Note” means that certain Promissory Note, dated as of September 19, 2022, issued to SPAC by Vista in the principal amount of $1,200,000 as a Working Capital Loan for the purpose of financing costs incurred in connection with a Business Combination.

“W&C” has the meaning specified in Section 11.17(b).

“W&C Privileged Communications” has the meaning specified in Section 11.17(b).

“Warrant Assumption Agreement” means an assumption agreement substantially in the form attached hereto as Exhibit G.

“Working Capital Loans” means any loan made to SPAC by any of the Sponsor, an Affiliate of the Sponsor, or any of SPAC’s officers or directors, and evidenced by a promissory note, for the purpose of financing costs incurred in connection with a Business Combination, including the SPAC Convertible Notes.

Section 1.2         Construction.

(a)            Unless the context of this Agreement otherwise requires: (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby,” “hereto,” “hereunder” and derivative or similar words refer to this entire Agreement; (iv) the terms “Article,” “Section,” “Annex” or “Exhibit” refer to the specified Article, Section, Exhibit or Annex of this Agreement; (v)  the word “including” shall mean “including, without limitation”; (vi) the word “or” shall be disjunctive but not exclusive; (vii) reference to any Person includes such Person’s successors and permitted assigns; (viii) reference to any Law means such Law as amended, modified, codified, replaced or re-enacted, in whole or in part, from time to time, including rules, regulations, enforcement procedures and any interpretations promulgated thereunder; (ix) references to amounts of currency are references to United States Dollars unless otherwise indicated; and (x) the words “made available,” “provided” or “delivered” to a Party, or similar formulations, means that such materials were (A) provided by electronic transmission directly to a Party’s legal counsel or financial advisors prior to such time or (B) if applicable, available to such Party in the electronic data room hosted by the providing Party in connection with the Transactions at least one Business Day prior to the date of this Agreement (and continuously available to such Party and its legal counsel and financial advisors through the date hereof).

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(b)            Unless the context of this Agreement otherwise requires: (i) references to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation; and (ii) all the agreements (including this Agreement), documents or instruments herein defined (excluding any agreements, documents or instruments disclosed in the Disclosure Letters) mean such agreements, documents or instruments as the same may from time to time be supplemented or amended or the terms thereof waived or modified to the extent permitted by, and in accordance with, the terms thereof.

(c)            Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, and if the last day of such period is not a Business Day, the period shall end on the immediately following Business Day.

(d)            All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.

(e)            The Parties have participated jointly in negotiating and drafting this Agreement. If an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

(f)            Notwithstanding anything to the contrary contained in this Agreement, when used herein, “ordinary course of business” means, with respect to any Person, (a) any action taken or not taken by such Person in the ordinary course of business consistent with past practice, or (b) any COVID-19 Action taken by such Person.

(g)            For the avoidance of doubt and notwithstanding anything to the contrary contained in this Agreement or otherwise (including any covenants or other agreements that apply to the Company prior to it becoming a party hereto or the Target Companies for the time period between the SPAC Merger and the Closing), (i) Flexjet and Merger Sub 2 shall be included in the defined term “Target Companies” solely for the time period up to immediately prior to the consummation of the SPAC Merger, (ii) the Company shall be included in the defined term “Target Companies” and “Parties” only upon the Company’s execution of a joinder to this Agreement, and (iii) the Company shall have rights and obligations (including obligations pursuant to the covenants herein) hereunder only upon the Company’s execution of a joinder to this Agreement.

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Article II
THE MERGERS; CLOSING

Section 2.1            SPAC Merger.

(a)            SPAC Merger. In order to facilitate the formation of Flexjet, Epic has contributed $1,000 to Flexjet in exchange for all the issued share capital in Flexjet as of the date hereof (the “Initial Flexjet Interest”). At the SPAC Merger Effective Time (which shall in any event follow the consummation Pre-Closing Reorganization), and upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the relevant provisions of the DGCL, the DLLCA and the Cayman Act, (i) SPAC shall be merged with and into Merger Sub 2, with Merger Sub 2 continuing as the surviving limited liability company of the SPAC Merger and as a direct, wholly-owned subsidiary of Flexjet (such surviving limited liability company, the “SPAC Surviving Sub”), (ii) the separate corporate existence of SPAC shall cease and (iii) the Initial Flexjet Interest shall be automatically converted into and exchanged into the right of Epic to receive an aggregate of $1,000 in cash pursuant to Section 3.1(b) (the “Initial Flexjet Interest Redemption Amount”).

(b)            SPAC Merger Effective Time. Upon the terms and subject to the conditions set forth in this Agreement, one Business Day (which shall also be one calendar day) prior to the Company Merger Effective Time, SPAC, Flexjet and Merger Sub 2 shall (i) cause a certificate of merger (the “SPAC Merger Certificate”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and the DLLCA and (ii) cause a plan of merger (the “SPAC Plan of Merger”) to be executed and filed with the Cayman Registrar in accordance with the relevant provisions of the Cayman Act. The SPAC Merger shall become effective at the later of (A) the time when the SPAC Merger Certificate has been accepted for filing by the Secretary of State of the State of Delaware and (B) the date when the SPAC Plan of Merger has been filed with the Cayman Registrar and in any event, shall become effective one Business Day (which shall also be one calendar day) prior to the Company Merger Effective Time (the “SPAC Merger Effective Time”). Prior to the filing of the SPAC Merger Certificate and SPAC Plan of Merger, Flexjet shall deliver to SPAC the written resignations of all of the directors and officers of Flexjet and Merger Sub 2, effective as of the SPAC Merger Effective Time.

(c)            Effects of the SPAC Merger. At and after the SPAC Merger Effective Time, the SPAC Surviving Sub shall thereupon and thereafter possess all of the rights, privileges, powers and franchises, of a public as well as a private nature, of SPAC and Merger Sub 2, and shall become subject to all the restrictions, disabilities and duties of each of SPAC and Merger Sub 2; and all rights, privileges, powers and franchises of each of SPAC and Merger Sub 2, and all property, real, personal and mixed, and all debts due to each of SPAC and Merger Sub 2, on whatever account, shall become vested in the SPAC Surviving Sub; and all property, rights, privileges, powers and franchises, and all and every other interest shall become thereafter the property of the SPAC Surviving Sub as they are of SPAC and Merger Sub 2; and the title to any real property vested by deed or otherwise or any other interest in real estate vested by any instrument or otherwise in either of SPAC and Merger Sub 2 shall not revert or become in any way impaired by reason of the SPAC Merger; but all Liens upon any property of SPAC and Merger Sub 2 shall thereafter attach to the SPAC Surviving Sub and shall be enforceable against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it; all of the foregoing in accordance with the applicable provisions of the DGCL and DLLCA.

Section 2.2            Company Merger.

(a)            Company Merger. At the Company Merger Effective Time (which shall in any event follow the consummation of the SPAC Merger and the Sponsor Exchange and occur substantially simultaneously with the consummation of the PIPE Investment (including the Eldridge Back-Stop, if necessary)), and upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the relevant provisions of the DGCL and the DLLCA, (i) Merger Sub 1 shall be merged with and into the Company, with the Company continuing as the surviving corporation of the Company Merger and as a direct, wholly-owned subsidiary of the SPAC Surviving Sub and indirect, wholly-owned subsidiary of Flexjet (such surviving corporation, the “Surviving Corporation”) and (ii) the separate corporate existence of Merger Sub 1 shall cease.

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(b)            Company Merger Effective Time. Upon the terms and subject to the conditions set forth in this Agreement, concurrently with the Closing, the SPAC Surviving Sub, Merger Sub 1 and the Company shall cause a certificate of merger (the “Company Merger Certificate”) to be executed and filed with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and the DLLCA. The Company Merger shall become effective at the time when the Company Merger Certificate has been accepted for filing by the Secretary of State of the State of Delaware, or at such later time as may be agreed by the SPAC Surviving Sub, Merger Sub 1 and the Company in writing and specified in the Company Merger Certificate (the “Company Merger Effective Time”).

(c)            Effects of the Company Merger. At and after the Company Merger Effective Time, the Surviving Corporation shall thereupon and thereafter possess all of the rights, privileges, powers and franchises, of a public as well as a private nature, of the Company and Merger Sub 1, and shall become subject to all the restrictions, disabilities and duties of each of the Company and Merger Sub 1; and all rights, privileges, powers and franchises of each of the Company and Merger Sub 1, and all property, real, personal and mixed, and all debts due to each of the Company and Merger Sub 1, on whatever account, shall become vested in the Surviving Corporation; and all property, rights, privileges, powers and franchises, and all and every other interest shall become thereafter the property of the Surviving Corporation as they are of the Company and Merger Sub 1; and the title to any real property vested by deed or otherwise or any other interest in real estate vested by any instrument or otherwise in either of the Company and Merger Sub 1 shall not revert or become in any way impaired by reason of the Company Merger; but all Liens upon any property of the Company and Merger Sub 1 shall thereafter attach to the Surviving Corporation and shall be enforceable against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it; all of the foregoing in accordance with the applicable provisions of the DGCL.

Section 2.3            Sponsor Exchange. Prior to the Closing and adoption of the Second Amended and Restated Flexjet Charter (but following the SPAC Merger), and pursuant to the terms of the Exchange Agreement, Flexjet, Directional and Sponsor shall consummate the Sponsor Exchange in accordance with the terms and conditions of the Exchange Agreement.

Section 2.4             Eldridge Back-Stop; PIPE Investment. Substantially simultaneously with the Closing, the PIPE Investment (including, if necessary, the Eldridge Back-Stop) shall be consummated pursuant to, and in the amounts set forth in, the Subscription Agreements.

Section 2.5            Closing.

(a)            In accordance with the terms and subject to the conditions of this Agreement, the consummation of the PIPE Investment and the closing of the Company Merger (the “Closing”) shall take place by electronic delivery of documents (by PDF (portable document format) or electronic mail), all of which will be deemed to be originals, at a time to be agreed by the Parties on the date which is three Business Days after the first date on which all conditions set forth in Article IX shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof) or, if the day after such date is not a Business Day, the next Business Day with respect to which the immediate next day is a Business Day, or such other time and place as the Parties may mutually agree in writing. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date.”

(b)            For the avoidance of doubt, the Closing and the Company Merger Effective Time shall occur after the completion of the SPAC Merger, the Pre-Closing Reorganization, the Sponsor Exchange and the adoption of the Second Amended and Restated Flexjet Charter.

Section 2.6             Closing Deliverables; Closing Transactions.

(a)            At or prior to the Closing, the Company will deliver or cause to be delivered:

(i)            to Flexjet, a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a), Section 9.2(b), Section 9.2(c) and Section 9.2(d) have been fulfilled;

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(ii)            to Flexjet, the Registration Rights Agreement, duly executed by the stockholders of the Company party thereto;

(iii)            to Flexjet, the Stockholders Agreement, duly executed by the stockholders of the Company party thereto; and

(iv)            to Flexjet, in form and substance reasonably satisfactory to Flexjet, a certificate on behalf of the Company dated no more than 30 days prior to the Closing Date, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).

(b)            At or prior to the Closing, Flexjet will deliver or cause to be delivered:

(i)            to the Company, a certificate signed by an officer of Flexjet (which, for the avoidance of doubt, shall be an officer as appointed pursuant to Section 2.8(c)), dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a), Section 9.3(b), Section 9.3(c) and Section 9.3(d) have been fulfilled;

(ii)            to the Company, the Registration Rights Agreement, duly executed by Flexjet, the Sponsor and the other shareholders of SPAC party thereto;

(iii)            to the Company, the Stockholders Agreement, duly executed by Flexjet, Eldridge and the Sponsor;

(iv)            to the Company, in form and substance reasonably satisfactory to the Company, a certificate on behalf of Flexjet, prepared in a manner consistent and in accordance with the requirements of Treasury Regulation Sections 1.897-2(g), (h) and 1.1445-2(c)(3) certifying that no interest in Flexjet is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “U.S. real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the Internal Revenue Service prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2); and

(v)            to the Company, the written resignations of all of the directors and officers of Flexjet and the SPAC Surviving Sub (other than those Persons identified as the initial directors and officers, respectively, of Flexjet after the Company Merger Effective Time, in accordance with the provisions of Section 2.8 and Section 8.6), effective as of the Company Merger Effective Time.

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(c)            On the Closing Date, substantially concurrently with the Company Merger Effective Time and in any event, only upon Flexjet’s receipt of the PIPE Investment Amount and applicable portion of the Trust Account funds not paid to redeeming SPAC Shareholders, Flexjet shall pay or cause to be paid by wire transfer of immediately available funds, (i) any payments to the SPAC Shareholders required to be made by Flexjet in connection with the SPAC Share Redemption, (ii) all accrued and unpaid SPAC Transaction Expenses (which shall include all outstanding amounts under all Working Capital Loans evidenced by the SPAC Convertible Notes that have not made an election pursuant to Section 3.1(e)) as set forth on a written statement to be delivered to the Company and Epic by or on behalf of SPAC not less than two Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices (where applicable) and applicable Tax forms (e.g., IRS Form W-9) for the foregoing, and (iii) all accrued and unpaid Company Transaction Expenses (including the Secondary Proceeds) as set forth on a written statement to be delivered to SPAC by or on behalf of the Company not less than two Business Days prior to the Closing Date, which shall include the respective amounts and wire transfer instructions for the payment thereof, together with corresponding invoices (where applicable) and applicable Tax forms (e.g., IRS Form W-9) for the foregoing; provided, that any Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of any Target Company or any of its Subsidiaries relating to compensation for services shall be paid to the applicable Target Company or its applicable Subsidiary for further payment to such employee, independent contractor, officer or director through such applicable Target Company’s or Subsidiary’s payroll.

Section 2.7            Organizational Documents.

(a)            At the SPAC Merger Effective Time, by virtue of the SPAC Merger, (i) the certificate of formation of Merger Sub 2, as in effect immediately prior to the SPAC Merger Effective Time, shall be the certificate of formation of the SPAC Surviving Sub until thereafter amended as provided therein or in accordance with the DLLCA, (ii) the limited liability company agreement of Merger Sub 2, as in effect immediately prior to the SPAC Merger Effective Time, shall be the limited liability company agreement of the SPAC Surviving Sub until thereafter amended as provided therein or in accordance with the DLLCA, and (iii) the certificate of incorporation of Flexjet will be amended and restated in its entirety in a form reasonably satisfactory to SPAC and Epic (the “First Amended and Restated Flexjet Charter”) and thereafter amended as provided therein or in accordance with the DGCL and (ii) the bylaws of Flexjet will be amended and restated in their entirety in a form reasonably satisfactory to SPAC and Epic (the “First Amended and Restated Flexjet Bylaws”) and thereafter amended as provided therein or in accordance with the DGCL.

(b)            At the Company Merger Effective Time, by virtue of the Company Merger, (i) the certificate of incorporation of the Surviving Corporation shall be in a form reasonably satisfactory to SPAC, Epic and the Company until thereafter amended as provided therein or in accordance with the DGCL and (ii) the bylaws of the Surviving Corporation shall be in a form reasonably satisfactory to SPAC, Epic and the Company until thereafter amended as provided therein or in accordance with the DGCL.

(c)            Immediately prior to the Company Merger Effective Time, Flexjet shall take all actions required to amend and restate (i) the First Amended and Restated Flexjet Charter substantially in the form attached hereto as Exhibit A (the “Second Amended and Restated Flexjet Charter”) and (ii) the First Amended and Restated Flexjet Bylaws substantially in the form attached hereto as Exhibit B (the “Second Amended and Restated Flexjet Bylaws”), in each case, with such changes as may be agreed in writing by SPAC, Flexjet, Epic and the Company at any time prior to the SPAC Shareholders’ Meeting, which shall be the certificate of incorporation and bylaws, respectively, of Flexjet until thereafter amended as provided therein or in accordance with the DGCL.

Section 2.8            Directors and Officers.

(a)            The officers and directors of SPAC as of immediately prior to the SPAC Merger Effective Time, shall be the officers and directors of the SPAC Surviving Sub from and after the SPAC Merger Effective Time until the Company Merger Effective Time, in each case, to hold office in accordance with the Organizational Documents of the SPAC Surviving Sub.

(b)            Certain Persons, as determined by the Company and Epic and communicated to SPAC prior to the Closing Date, shall be the officers and directors of the Surviving Corporation from and after the Company Merger Effective Time, in each case, to hold office in accordance with the Organizational Documents of the Surviving Corporation.

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(c)            SPAC and Flexjet shall take all actions necessary to ensure that, from and after the SPAC Merger Effective Time until the Company Merger Effective Time, the officers and directors of SPAC as of immediately prior to the SPAC Merger Effective Time, shall be the officers and directors of Flexjet from and after the SPAC Merger Effective Time until the Company Merger Effective Time, in each case, to hold office in accordance with the Organizational Documents of Flexjet.

(d)            The Parties shall take all actions necessary to ensure that, from and after the Company Merger Effective Time, the Persons identified as the initial post-Closing directors and officers of Flexjet in accordance with the provisions of Section 8.6 shall be the directors and officers, respectively, of Flexjet, each to hold office in accordance with the Second Amended and Restated Flexjet Charter and Second Amended and Restated Flexjet Bylaws.

(e)            Certain Persons, as determined by the Company and Epic and communicated to SPAC prior to the Closing Date, shall be the officers and directors of the SPAC Surviving Sub from and after the Company Merger Effective Time, in each case, to hold office in accordance with the Organizational Documents of the SPAC Surviving Sub.

Section 2.9            Tax Treatment.

(a)            Each of the Parties intends that, for U.S. federal income tax purposes (and for purposes of any applicable state or local income tax that follows the U.S. federal income tax treatment), (i) the SPAC Merger qualifies for the SPAC Merger Intended Tax Treatment, (ii) the Sponsor Exchange qualifies for the Exchange Intended Tax Treatment, (iii) the Company Merger and the PIPE Investment qualify for the Company Merger Intended Tax Treatment, and (iv) this Agreement constitute a “plan of reorganization” for purposes of Sections 354, 361 and the 368 of the Code and within the meaning of Treasury Regulations Section 1.368-2(g). Each Party shall, to the extent such Party is required under applicable Law, file all applicable U.S. federal and state income Tax Returns on a basis consistent with the Intended Tax Treatment, and, in each case, shall not take any inconsistent position on any Tax Return, or during the course of any audit, litigation or other proceeding with respect to Taxes, unless otherwise required pursuant to a determination within the meaning of Section 1313(a) of the Code (or analogous provisions of state Law).

(b)            None of the Parties shall knowingly take or cause to be taken, or knowingly fail to take or cause to be taken, any action that would reasonably be expected to prevent (i) the Company Merger and the PIPE Investment from qualifying for the Company Merger Intended Tax Treatment, (ii) the SPAC Merger from qualifying for the SPAC Merger Intended Tax Treatment, or (iii) the Sponsor Exchange from qualifying for the Exchange Intended Tax Treatment. Each of the Parties agrees to promptly notify all other Parties of any challenge to the Intended Tax Treatment by any Governmental Authority.

(c)            Each Party shall use commercially reasonable efforts to cooperate with each other and their respective counsel to document and support the treatment of the Transactions in a manner consistent with the Intended Tax Treatment, including by providing factual customary support letters reasonably acceptable to each Party.

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Article III

EFFECTS OF THE MERGERS; Closing Transactions

Section 3.1            SPAC Merger Conversion of Securities. Upon the terms and subject to the conditions of this Agreement, at the SPAC Merger Effective Time, by virtue of the SPAC Merger and this Agreement and without any action on the part of any Party or the holders of any of the following securities:

(a)            Conversion of Merger Sub 2 Interests. All of the outstanding membership interests of Merger Sub 2 issued and outstanding as of immediately prior to the SPAC Merger Effective Time shall be converted into and exchanged for, collectively, all of the membership interests of the SPAC Surviving Sub.

(b)            Cancellation of Flexjet Shares. Each share of Flexjet share capital that is issued and outstanding immediately prior to the SPAC Merger Effective Time (which shall consist solely of the Initial Flexjet Interest) shall be automatically converted into and exchanged for the right to receive its pro rata portion of the Initial Flexjet Interest Redemption Amount. Promptly following the SPAC Merger Effective Time, Flexjet shall pay the Initial Flexjet Interest Redemption Amount, pro rata, to the holders of Flexjet share capital immediately prior to the SPAC Merger Effective Time.

(c)            Conversion of SPAC Class A Common Stock. Each share of SPAC Class A Common Stock issued and outstanding immediately prior to the SPAC Merger Effective Time shall be automatically converted into and shall for all purposes represent only the right to receive one validly issued, fully paid and non-assessable share of Flexjet Class A Common Stock (such shares of Flexjet Class A Common Stock referred to collectively as the “SPAC Class A Merger Consideration”). As of the SPAC Merger Effective Time, the SPAC Class A Common Stock shall cease to be outstanding and shall cease to exist, and each holder of any such SPAC Class A Common Stock shall cease to have any rights with respect thereto, except for the right to receive, in accordance with this Section 3.1(c), such holder’s portion of the SPAC Class A Merger Consideration.

(d)            Conversion of SPAC Class B Common Stock. Each share of SPAC Class B Common Stock issued and outstanding immediately prior to the SPAC Merger Effective Time shall be automatically converted into and shall for all purposes represent only the right to receive one validly issued, fully paid and non-assessable share of Flexjet Class B Common Stock (such shares of Flexjet Class B Common Stock referred to collectively as the “SPAC Class B Merger Consideration”). As of the SPAC Merger Effective Time, the SPAC Class B Common Stock shall cease to be outstanding and shall cease to exist, and each holder of any such SPAC Class B Common Stock shall cease to have any rights with respect thereto, except for the right to receive, in accordance with this Section 3.1(d), such holder’s portion of the SPAC Class B Merger Consideration.

(e)            Treatment of Non-Redeeming SPAC Convertible Notes. In the event Epic, the Company and Flexjet have received written notice, not less than two Business Days prior to the Closing Date and in any event prior to the delivery of the written statement by or on behalf of SPAC described in Section 2.6(c)(ii), of the election of a holder of a SPAC Convertible Note to convert all or any portion of the principal amount outstanding of its SPAC Convertible Note into SPAC Private $11.50 Warrants (such holder’s elected amount, the “Elected SPAC Convertible Note Amount”), such Elected SPAC Convertible Note Amount shall be automatically converted, at the SPAC Merger Effective Time, at the conversion price set forth in the applicable SPAC Convertible Note, as applicable, into the right to receive, at the Company Merger Effective Time, a corresponding number of Flexjet Assumed Private $11.50 Warrants.

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(f)            Treatment of SPAC Warrants.

(i)            Each SPAC Private $11.50 Warrant that is outstanding immediately prior to the SPAC Merger Effective Time shall be converted into and become the right to receive, at the Company Merger Effective Time, a Flexjet Assumed Private $11.50 Warrant. Each Flexjet Assumed Private $11.50 Warrant shall have terms identical to each SPAC Private $11.50 Warrant as in effect as of the date of this Agreement (other than the fact that it will be exercisable for Flexjet Common Stock rather than SPAC Common Stock) and shall be governed by the Flexjet Assumed Warrant Agreement; and

(ii)            Each SPAC Public $11.50 Warrant that is outstanding immediately prior to the SPAC Merger Effective Time shall be converted into and become the right to receive, at the Company Merger Effective Time, a Flexjet Assumed Public $11.50 Warrant. Each Flexjet Assumed Public $11.50 Warrant shall have terms identical to each SPAC Public $11.50 Warrant as in effect as of the date of this Agreement (other than the fact that it will be exercisable for Flexjet Common Stock rather than SPAC Common Stock) and shall be governed by the Flexjet Assumed Warrant Agreement.

(g)            Treatment of Redeeming SPAC Convertible Notes. Each holder of a SPAC Convertible Note that did not elect to convert all or a portion, as applicable, of the principal amount outstanding of its SPAC Convertible Note in accordance with Section 3.1(e) shall have its SPAC Convertible Note (or a portion thereof, as applicable) terminated and extinguished in full satisfaction thereof at the SPAC Merger Effective Time in exchange for the right to receive the SPAC Convertible Notes Redemption Amount at the Closing in respect thereof in connection with the payment of SPAC Transaction Expenses pursuant to Section 2.6(c).

(h)            Notwithstanding anything in this Agreement to the contrary, no fractional shares of Flexjet Class A Common Stock or Flexjet Class B Common Stock shall be issued in the SPAC Merger.

Section 3.2            Company Merger Conversion of Securities.

Upon the terms and subject to the conditions of this Agreement, at the Company Merger Effective Time, by virtue of the Company Merger and this Agreement and without any action on the part of any Party or the holders of any of the following securities:

(a)            Conversion of Merger Sub 1 Interests. All of the outstanding membership interests of Merger Sub 1 issued and outstanding as of immediately prior to the Company Merger Effective Time shall be converted into and exchanged for, collectively, all of the share capital of the Surviving Corporation.

(b)            Conversion of Company Common Stock.

(i)            Each share of Company Common Stock (for the avoidance of doubt, including shares of Company Common Stock issued in the Pre-Closing Reorganization and shares of Company Common Stock issued as part of the Pre-Closing Management Grants, but excluding any shares redeemed as part of the Series D-2 Redemption), in each case, that is issued and outstanding immediately prior to the Company Merger Effective Time (other than (i) any shares of Company Capital Stock subject to Company Options (which shall be subject to Section 3.4), (ii) any shares of Company Capital Stock held in the treasury of the Company, which treasury shares shall be canceled as part of the Company Merger and shall not constitute “Company Capital Stock” hereunder (each such share, a “Treasury Share”), and (iii) any Dissenting Shares (which shall be subject to Section 3.6) (collectively, the “Excluded Company Common Shares”)), shall be canceled and converted into the right to receive the applicable portion of the Aggregate Merger Consideration as determined pursuant to Section 3.2(b)(ii).

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(ii)            Each share of Company Common Stock as of immediately prior to the Company Merger Effective Time (other than in respect of the Excluded Company Common Shares) shall be converted into and represent the right to receive a portion of the Aggregate Merger Consideration equal to the Exchange Ratio and each holder of shares of Company Common Stock as of immediately prior to the Company Merger Effective Time (other than the Excluded Company Common Shares) shall be entitled to receive, for such shares of Company Common Stock that it holds (other than Excluded Company Common Shares), a portion of the Aggregate Merger Consideration equal to (i) the Exchange Ratio multiplied by (ii) the number of shares of Company Common Stock (other than Excluded Company Common Shares) held by such holder as of immediately prior to the Company Merger Effective Time, with the product rounded up or down to the nearest whole share, as applicable.

(iii)            Notwithstanding anything in this Agreement to the contrary, no fractional shares of Flexjet Common Stock shall be issued in the Company Merger.

Section 3.3            Exchange Procedures.

(a)            No later than five Business Days prior to the Closing Date, Flexjet shall appoint an exchange agent reasonably acceptable to Flexjet, the Company, Epic and SPAC (the “Exchange Agent”) to act as the agent for the purpose of paying the consideration to the applicable Persons in the manner contemplated by Section 3.1 (in connection with the SPAC Merger) and Section 3.2 (in connection with the Company Merger) and shall enter into an exchange agent agreement with the Exchange Agent reasonably acceptable to Flexjet, the Company, Epic and SPAC. At or before (i) the SPAC Merger Effective Time, Flexjet shall issue and deposit with the Exchange Agent the aggregate consideration to be issued or paid by Flexjet pursuant to Section 3.1 and (ii) the Company Merger Effective Time, Flexjet shall issue and deposit with the Exchange Agent the aggregate consideration to be issued or paid by Flexjet pursuant to Section 3.2.

(b)            As soon as reasonably practicable after the Registration Statement is declared effective under the Securities Act, Flexjet shall cause the Exchange Agent to send, to each record holder of shares of Company Capital Stock entitled to receive consideration pursuant to Section 3.2 a letter of transmittal and instructions (which shall specify that the delivery shall be effected, and the risk of loss and title shall pass, only upon proper transfer of each share of Company Capital Stock to the Exchange Agent, and which letter of transmittal will be in customary form and have such other provisions as Flexjet, the Company, Epic and SPAC may reasonably specify) for use in such exchange.

(c)            Promptly following the date that is one year after the Company Merger Effective Time, Flexjet shall instruct the Exchange Agent to deliver to Flexjet all documents in its possession relating to the Transactions, and the Exchange Agent’s duties shall terminate. Thereafter, any portion of the consideration contemplated by Section 3.1 or Section 3.2 that remains unclaimed shall be returned to Flexjet, and any Person entitled to consideration pursuant to Section 3.1 and Section 3.2, as applicable, that has not exchanged its shares of SPAC Common Stock, SPAC Warrants or shares of Company Capital Stock for an applicable portion of the consideration contemplated by Section 3.1 or Section 3.2 (as applicable) in accordance with this Section 3.3 prior to the date that is one year after the Company Merger Effective Time, may transfer such shares of SPAC Common Stock, SPAC Warrants or shares of Company Capital Stock to Flexjet and (subject to applicable abandoned property, escheat and similar Laws) receive in consideration therefor, and Flexjet shall promptly deliver, such applicable portion of the consideration contemplated by Section 3.1 or Section 3.2 (as applicable) without any interest thereupon. None of SPAC, the SPAC Surviving Sub, Epic, the Company, the Surviving Corporation, the Exchange Agent or any Subsidiary or Affiliate of any of the foregoing shall be liable to any Person in respect of any of the consideration contemplated by Section 3.1 or Section 3.2 that is delivered to a public official pursuant to and in accordance with any applicable abandoned property, escheat or similar Laws. If any such shares of SPAC Common Stock, SPAC Warrants or shares of Company Capital Stock shall not have been transferred immediately prior to such date on which any amounts payable pursuant to this Article III would otherwise escheat to or become the property of any Governmental Authority, any such amounts shall, to the extent permitted by applicable Law, become the property of Flexjet, free and clear of all claims or interest of any Person previously entitled thereto.

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Section 3.4            Treatment of Company Options.

(a)            Each Company Option that is outstanding as of immediately prior to the Company Merger Effective Time shall be cancelled as of the Company Merger Effective Time, and converted into the right to receive a vested option to purchase shares of Flexjet Common Stock upon substantially the same terms and conditions as are in effect with respect to such option immediately prior to the Company Merger Effective Time (each, a “Flexjet Option”) except that (a) such Flexjet Option shall provide the right to purchase that whole number of shares of Flexjet Common Stock (rounded down to the nearest whole share) equal to the number of shares of Company Common Stock subject to such Company Option, multiplied by the Exchange Ratio, and (b) the exercise price per share for each such Flexjet Option shall be equal to the exercise price per share of such Company Option in effect immediately prior to the Effective Time, divided by the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent); provided, however, that the conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code.

(b)            The Company shall take all necessary actions to effect the treatment of Company Options pursuant to this Section 3.4 in accordance with the Epic Incentive Plan and the applicable award agreements and to ensure that, from and after the Closing, holders of Company Options have no rights with respect thereto other than those provided in this Section 3.4.

Section 3.5            Withholding. Notwithstanding any other provision to this Agreement, SPAC, the Company, the Exchange Agent and their respective Affiliates or other Persons making payments on their behalf shall be entitled to deduct and withhold from any consideration payable in cash or otherwise pursuant to this Agreement such Taxes that are required to be deducted and withheld from such amounts under the Code or any other applicable Law (as reasonably determined by SPAC, the Company, the Exchange Agent or their respective Affiliates or other Persons making payments on their behalf, as applicable); provided, that SPAC shall use commercially reasonable efforts to provide the Company with at least 10 days prior written notice of any amounts that it intends to deduct or withhold (together with any legal basis therefor and method of calculation) in connection with the payment of the consideration payable pursuant to Section 3.1 or Section 3.2 (other than any compensatory payments to be made pursuant to this Agreement or backup withholding), shall use commercially reasonable efforts to provide the applicable holder of Company Capital Stock a reasonable opportunity to provide documentation establishing exemptions from or reductions of such deductions or withholdings, and shall reasonably cooperate with the Company to reduce or eliminate any applicable deductions or withholding. To the extent that any amounts are so deducted and withheld, such deducted and withheld amounts shall be (i) timely remitted to the appropriate Governmental Authority, and (ii) treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. In the case of any such payment payable to employees of the Company or its Subsidiaries in connection with the Mergers treated as compensation, the Parties shall cooperate to pay such amounts through the Company’s or the relevant Subsidiary’s payroll to facilitate applicable withholding.

Section 3.6             Dissenting Shares. Notwithstanding any provision of this Agreement to the contrary, shares of Company Common Stock issued and outstanding immediately prior to the Company Merger Effective Time and held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in writing and who is entitled to demand and has properly exercised appraisal rights of such shares in accordance with Section 262 of the DGCL (such shares of Company Common Stock being referred to collectively as the “Dissenting Shares” until such time as such holder fails to perfect or otherwise waives, withdraws, or loses such holder’s appraisal rights under the DGCL with respect to such shares) shall not be converted into a right to receive a portion of the Aggregate Merger Consideration in accordance with Section 3.2, but instead shall be entitled to only such rights as are granted by Section 262 of the DGCL; provided, however, that if, after the Company Merger Effective Time, such holder fails to perfect, waives, withdraws, or loses such holder’s right to appraisal pursuant to Section 262 of the DGCL, or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, such shares of Company Common Stock shall be treated as if they had been converted as of the Company Merger Effective Time into the right to receive the applicable portion of the Aggregate Merger Consideration in accordance with Section 3.2 without interest thereon, upon transfer of such shares. The Company shall provide SPAC and Flexjet written notice of any demands received by the Company for appraisal of shares of Company Common Stock, any waiver or withdrawal of any such demand, and any other demand, notice, or instrument delivered to the Company prior to the Company Merger Effective Time that relates to such demand.

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Article IV

REPRESENTATIONS AND WARRANTIES OF the Target companies

Except as set forth in the disclosure letter delivered to SPAC and Merger Sub 1 by Epic on the date of this Agreement (the “Epic Disclosure Letter”), subject to Section 11.11, each Target Company, severally and not jointly with the other Target Companies, and subject to Section 1.2(g), represents and warrants, in each case, only with respect to such representations and warranties in this Article IV that apply to such Target Company or its Subsidiaries, to SPAC and Merger Sub 1 as follows:

Section 4.1            Organization. Epic is a corporation duly incorporated, and is validly existing and in good standing under the Laws of the State of Delaware, and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. Epic has made available to SPAC true, correct and complete copies of the Organizational Documents of Epic as amended and in effect to the date of this Agreement. Epic is duly licensed or qualified and in good standing in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not have, and would not reasonably be expected to have, individually or in the aggregate, an Epic Material Adverse Effect.

Section 4.2            Subsidiaries and Other Target Companies. A complete list of each Subsidiary of Epic and each other Target Company, in each case, as of the date of this Agreement and its jurisdiction of incorporation, formation or organization, as applicable, is set forth on Section 4.2 of the Epic Disclosure Letter. The Subsidiaries of Epic and each other Target Company have been duly incorporated, formed or organized and are validly existing and (to the extent such concept exists in the jurisdiction in which such entity is incorporated, formed or organized) in good standing under the Laws of their jurisdiction of incorporation, formation or organization and have the requisite power and authority to own, lease or operate all of their respective properties and assets and to conduct their respective businesses as they are now being conducted. True, correct and complete copies of the Organizational Documents, as amended and in effect to the date of this Agreement, of each Subsidiary of Epic and each other Target Company set forth on Section 4.2 of the Epic Disclosure Letter have been previously made available to SPAC by or on behalf of the applicable Target Company. Each Subsidiary of Epic and each other Target Company is duly licensed or qualified and in good standing as a foreign or extra-provincial corporation (or other entity, if applicable) in each jurisdiction in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where the failure to be so licensed or qualified or in good standing would not have, or would not reasonably be expected to have, individually or in the aggregate, an Epic Material Adverse Effect.

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Section 4.3            Due Authorization.

(a)            Each Target Company has all requisite power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party contemplated hereby and (subject to the approvals described in Section 4.5, the Target Company Securityholder Approval and any approvals of the securityholders of the Target Companies to be obtained in connection with the Pre-Closing Reorganization) to consummate the Transactions and to perform all obligations to be performed by it hereunder and thereunder. The execution and delivery of this Agreement and each Ancillary Agreement to which each Target Company is a party contemplated hereby and the consummation of the Transactions have been duly and validly authorized and approved by the Board of Directors (or equivalent thereof) of such Target Company, and, except for the Target Company Securityholder Approval and any approvals of the securityholders of the Target Companies to be obtained in connection with the Pre-Closing Reorganization, no other corporate proceeding on the part of such Target Company is necessary to authorize this Agreement and each Ancillary Agreement to which such Target Company is a party contemplated hereby. This Agreement has been, and on or prior to the Closing, the Ancillary Agreements to which any Target Company is a party contemplated hereby will be, duly and validly executed and delivered by such Target Company, and this Agreement constitutes, and on or prior to the Closing, each Ancillary Agreement to which such Target Company is a party contemplated hereby will constitute, a legal, valid and binding obligation of such Target Company (assuming that this Agreement and such Ancillary Agreements are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other parties thereto), as applicable, enforceable against such Target Company, in accordance with its and their respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

(b)            On or prior to the date of this Agreement, the Board of Directors of Epic has duly adopted resolutions (i) determining that this Agreement and each Ancillary Agreement to which Epic is a party contemplated hereby and the Transactions are advisable and fair to, and in the best interests of, Epic and its stockholders, and (ii) authorizing and approving the execution, delivery and performance by Epic of this Agreement and each Ancillary Agreement to which Epic is a party contemplated hereby and the consummation of the Transactions. No other corporate action is required on the part of Epic or its equityholders to enter into this Agreement or each Ancillary Agreement to which Epic is a party contemplated hereby or to approve the Transactions, other than the Target Company Securityholder Approval and any approvals of the securityholders of the Target Companies to be obtained in connection with the Pre-Closing Reorganization.

Section 4.4            No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section 4.5, the execution and delivery by the Target Companies of this Agreement and each Ancillary Agreement to which any such Target Company is a party contemplated hereby and the consummation of the Transactions do not and will not (a) violate or conflict with any provision of, or result in the breach of, or default under the Organizational Documents of such Target Company, (b) violate or conflict with any provision of, or result in the breach of, or default under any applicable Law or Governmental Order applicable to such Target Company, (c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any Contract listed on Section 4.12(a) in the Epic Disclosure Letter to which such Target Company is a party or is bound, or terminate or result in the termination of any such foregoing Contract, or (d) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets of such Target Company or any Subsidiary of such Target Company, except, in the case of each of clauses (b) through (d), to the extent that the occurrence of the foregoing would not have, individually or in the aggregate, an Epic Material Adverse Effect.

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Section 4.5            Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of SPAC and Merger Sub 1 contained in this Agreement, no consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification to, any Governmental Authority or other Person is required on the part of any Target Company or its respective Subsidiaries with respect to any such Target Company’s execution or delivery of this Agreement or the consummation by such Target Company of the Transactions, except for: (i) applicable requirements of the HSR Act or any similar requirements under applicable foreign Laws or any other Governmental Approvals applicable to the Transactions , (ii) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, have or reasonably be expected to have (A) an Epic Material Adverse Effect or (B) a material adverse effect on the ability of such Target Company or its respective Subsidiaries to perform or comply with on a timely basis any material obligation of such Target Company or its respective Subsidiaries under this Agreement, the Ancillary Agreements to which such Target Company or its respective Subsidiaries is a party or to consummate the Transactions, (iii) the filing of the SPAC Merger Certificate and Company Merger Certificate in accordance with the DGCL, DLLCA and the filing of the SPAC Plan of Merger with the Cayman Registrar in accordance with the Cayman Act, as applicable, (iv) applicable requirements for securities Laws, and (v) as otherwise disclosed in Section 4.5 of the Epic Disclosure Letter.

Section 4.6            Capitalization of Epic.

(a)            As of the date of this Agreement and prior to giving effect to the Pre-Closing Reorganization, the authorized share capital of Epic consists of (x) 500,000 shares of Epic Common Stock, of which 109,773.2 are issued and outstanding and (y) 76,825 shares of Epic Preferred Stock, (A) 71,125.7 of which shares have been designated as Series D-1 Convertible Preferred Stock (the “Epic Series D-1 Preferred Stock”) and of which all are issued and outstanding and (B) 5,698.83 of which shares have been designated as Series D-2 Convertible Preferred Stock (the “Epic Series D-2 Preferred Stock”) and of which all are issued and outstanding, and there are no other shares of capital stock of Epic that are issued and outstanding. All of the issued and outstanding shares of Epic Capital Stock (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all applicable requirements set forth in (A) Epic’s Organizational Documents, and (B) any other applicable Contracts governing the issuance of such securities; (iii) are free and clear of any Liens (other than transfer restrictions under applicable securities Laws or under Epic’s Organizational Documents); and (iv) are not subject to any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under applicable Law or any Contracts to which Epic is a party or otherwise bound, except for, in each case of this clause (iv), as set forth in Epic’s Organizational Documents or that certain Third Amended and Restated Stockholders’ Agreement, dated March 12, 2021, by and among Epic and the other parties thereto (as may be amended from time to time).

(b)            As of the date of this Agreement and prior to giving effect to the Pre-Closing Reorganization, Epic Options to purchase 15,804.299 shares of Epic Common Stock are outstanding. As of the date of this Agreement, there are 15,804.299 shares of Epic Common Stock reserved for issuance under the Epic Incentive Plan. Epic has provided to SPAC, prior to the date of this Agreement, a true, correct and complete list of each current or former employee, consultant or director of Epic or any of its Subsidiaries and any other Person who, as of the date of this Agreement, holds an Epic Option, including the type of Epic Option, the number of shares of Epic Common Stock comprised thereof or subject thereto, vesting schedule, expiration date and, if applicable, the exercise price thereof.

(c)            Except as otherwise set forth in Section 4.6(c) of the Epic Disclosure Letter, Epic has not granted any outstanding subscriptions, options, stock appreciation rights, “phantom units,” rights, puts, warrants, rights or other securities (including debt securities) convertible into or exchangeable or exercisable for shares of Epic Capital Stock, any other commitments, calls, conversion rights, rights of exchange or privilege (whether preemptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional equity interests, the sale of equity interests, or for the repurchase or redemption of equity interests of Epic or the value of which is determined by reference to shares of Epic Common Stock or other equity interests of Epic, and there are no voting trusts, proxies or agreements of any kind which may obligate Epic to issue, purchase, register for sale, redeem or otherwise acquire any shares of Epic Capital Stock or other equity interests of Epic.

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Section 4.7             Capitalization of Subsidiaries and Other Target Companies.

(a)            The outstanding shares of capital stock or equity interests of each of Epic’s Subsidiaries and each of the Target Companies (other than Epic) set forth on Section 4.2 of the Epic Disclosure Letter (i) have been duly authorized and validly issued, and, to the extent applicable, are fully paid and non-assessable; and (ii) have been offered, sold and issued in compliance with the Organizational Documents of the applicable Subsidiary of the Company or Target Company, and, in all material respects, with applicable Law.

(b)            Except as set forth on Section 4.7(b) of the Epic Disclosure Letter, Epic owns, directly or indirectly, of record and beneficially all the issued and outstanding shares of capital stock or equity interests of its Subsidiaries set forth on Section 4.2 of the Epic Disclosure Letter, free and clear of any Liens (other than transfer restrictions under applicable securities Laws or under the applicable Organizational Documents).

(c)            Except as set forth on Section 4.7(c) of the Epic Disclosure Letter, there are no outstanding subscriptions, options, warrants, rights or other securities (including debt securities) exercisable or exchangeable for any capital stock or other securities of any Target Company (other than Epic) or Subsidiary of Epic set forth on Section 4.2 of the Epic Disclosure Letter, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or other equity interests, or for the repurchase or redemption of shares or other equity interests of such Target Company or Subsidiary or the value of which is determined by reference to shares or other equity interests of such Target Company or such Subsidiary of Epic, and there are no voting trusts, proxies or agreements of any kind which may obligate any such Target Company or such Subsidiary of Epic to issue, purchase, register for sale, redeem or otherwise acquire any of its capital stock.

(d)            As of the date hereof, Flexjet and Merger Sub 2 have no assets or operations other than as set forth in the immediately following sentence. As of the date hereof, (i) Flexjet owns of record and beneficially all of the issued and outstanding limited liability company interests of Merger Sub 2, free and clear of any Liens (other than transfer restrictions under applicable securities Laws or under its Organizational Documents) and (ii) Epic owns of record and beneficially all of the Flexjet Common Stock, free and clear of any Liens (other than transfer restrictions under applicable securities Laws or under its Organizational Documents). Prior to the Pre-Closing Reorganization, other than the limited liability company interests of Merger Sub 2, which are owned 100% by Flexjet, neither Flexjet nor Merger Sub 2 owns, directly or indirectly, any Subsidiaries, partnership interests, capital stock or equity securities or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated.

Section 4.8             Financial Statements.

(a)            The Epic Financial Statements (i) present fairly, in all material respects, the state and the consolidated financial position of Epic and its consolidated Subsidiaries as at the respective dates thereof and the consolidated results of their operations, their consolidated incomes, their consolidated changes in stockholders’ equity and their consolidated cash flows for the respective periods then ended, (ii) were prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto), (iii) were prepared from, and are in accordance in all material respects with, the books and records of Epic and its consolidated Subsidiaries, and (iv) when delivered by the Target Companies for inclusion in the Registration Statement for filing with the SEC following the date of this Agreement in accordance with Section 6.4, (w) will present fairly, in all material respects, the state and the consolidated financial position of Epic and its consolidated Subsidiaries as at the dates thereof and the consolidated results of their operations, their consolidated incomes, their consolidated changes in stockholders’ equity and their consolidated cash flows for the respective periods then ended, (x) will be prepared from, and will be in accordance in all material respects with, the books and records of Epic and its consolidated Subsidiaries, (y) will be prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto), and (z) in the case of audited financial statements, will be audited in accordance with the standards of the Public Company Accounting Oversight Board, and in each case will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC (including for the avoidance of doubt in accordance with any relief granted by the SEC to the Company or its auditors), the Exchange Act and the Securities Act applicable to a registrant, in effect as of the respective dates thereof. True, correct and complete copies of the Epic Financial Statements are set forth on Section 4.8(a) of the Epic Disclosure Letter.

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(b)            Except as set forth on Section 4.8(a) of the Epic Disclosure Letter, Epic (including, to the Knowledge of Epic, any employee or independent auditor thereof) has not identified or been made aware of (i) any significant deficiency in the system of internal accounting controls utilized by Epic, (ii) any fraud that involves Epic’s management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Epic, or (iii) any claim or allegation regarding any of the foregoing.

Section 4.9             No Undisclosed Liabilities. Epic and its Subsidiaries have no liabilities or obligations that would be required to be reflected or reserved against in the Epic Financial Statements prepared in accordance with GAAP, except for those liabilities or obligations (a) reflected or reserved for on the Epic Financial Statements or disclosed in the notes thereto, (b) that have arisen in the ordinary course of business since the date of the most recent balance sheet included in the Epic Financial Statements, (c) that will be discharged or paid off prior to or at the Closing, (d) incurred by Epic or any of its Subsidiaries in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Agreements or the consummation of the Transactions, (e) arising under the terms of any Contract binding upon Epic or any of its Subsidiaries (for the avoidance of doubt other than as a result of breach thereof), or (f) which would not have an Epic Material Adverse Effect.

Section 4.10           Litigation and Proceedings. Except as set forth on Section 4.10 of the Epic Disclosure Letter, as of the date hereof: (a) there are no pending or, to the Knowledge of Epic, threatened, lawsuits, actions, suits, judgments, claims, proceedings or any other Actions (including any investigations or inquiries initiated, pending or threatened by any Governmental Authority), or other proceedings at law or in equity (collectively, “Legal Proceedings”), against any Target Company or any of their respective Subsidiaries; and (b) there is no outstanding Governmental Order imposed upon any Target Company or any of its Subsidiaries, nor any of their properties or assets, except, in the case of clauses (a) and (b), as would not, individually or in the aggregate, have an Epic Material Adverse Effect.

Section 4.11          Legal Compliance.

(a)            No Target Company nor any Subsidiary of such Target Company is, or for the past three years has been, (i) in violation of any Laws applicable to such Target Company or such Subsidiary, including all applicable Laws prescribed or administered by the FAA and DOT under Title 14 of the Code of Federal Regulations and Title 49 of the United States Code; (ii) subject to an investigation with respect to or made voluntary disclosures with respect to potential violations of any such laws; and (iii) cited by the FAA, DOT or any other Aviation Authority for any discrepancies or violations during inspections or audits, except, in each case, as such violations would not have, individually or in the aggregate, an Epic Material Adverse Effect.

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(b)            Each Target Company and their respective Subsidiaries holds all Licenses necessary under applicable Laws for the conduct of their respective businesses as currently conducted and to own, lease or operate their respective properties (which Licenses are valid and in full force and effect) and are, and for the past three years have been, in compliance with the terms of such Licenses, except as would not be, individually or in the aggregate, have an Epic Material Adverse Effect.

(c)            For the past three years, no Target Company nor any of its respective Subsidiaries, nor, to the Knowledge of Epic, any of the respective officers, directors or employees thereof acting in such capacity has received any written notice of, or been charged with, the violation of any applicable Laws, which, individually or in the aggregate, would have an Epic Material Adverse Effect.

(d)            Except as would not have an Epic Material Adverse Effect, each Target Company and their respective Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals, takeoff and landing authorizations, clearances and orders of any Governmental Authority necessary for such Target Company or such Subsidiary to operate its air transportation as currently conducted, and to own, lease and operate its properties and to carry on its business (the “Epic Aviation Permits”). The use and operation by each Target Company and its respective Subsidiaries of its properties and the conduct of its business comply with the requirements and conditions of all Epic Aviation Permits, including all applicable operating certificates and authorities, common carrier obligations and airworthiness directives, except where the failure to comply would not have an Epic Material Adverse Effect.

Section 4.12          Contracts; No Defaults.

(a)            Section 4.12(a) of the Epic Disclosure Letter contains a true, complete and correct list of each of the following Contracts to which the Target Company or a Subsidiary of a Target Company is a party to or is bound by as of the date hereof, other than any Epic Benefit Plan. True, correct and complete copies of the Contracts listed on Section 4.12(a) of the Epic Disclosure Letter have previously been delivered to or made available to SPAC or its agents or Representatives, together with all amendments thereto.

(i)            Each Contract with any of Epic’s top ten vendors based on aggregate dollars spent by Epic and its Subsidiaries during the past two years;

(ii)            Each note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract for money borrowed, including any agreement or commitment for future loans, credit or financing, in each case, in excess of $5,000,000;

(iii)            Each Contract for the acquisition of any Person or any business unit thereof or the disposition of any material assets of any Target Company or any of its Subsidiaries, in each case, involving payments in excess of $10,000,000 annually in the aggregate, other than Contracts (A) for the purchase of a single aircraft, or (B) in which the applicable acquisition or disposition has been consummated and there are no material obligations ongoing;

(iv)            Each lease or rental agreement, installment and conditional sale agreement, and other Contract that provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in any personal property (excluding leases of Aircraft between Subsidiaries), with annual rents in excess of $5,000,000;

(v)            Each Real Property Lease with annual rents in excess of $5,000,000;

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(vi)            Each Contract involving the formation of a (A) joint venture, (B) partnership, or (C) limited liability company, in each case providing for the sharing of revenues, profits, losses or costs;

(vii)           Each material Contract (other than employment agreements, employee confidentiality and invention assignment agreements, equity or incentive equity documents and Organizational Documents) between any Target Company or a Subsidiary of a Target Company, on the one hand, and Affiliates of a Target Company, the officers, directors, stockholders, immediate family members, employees, managers (or equivalents) of any Target Company or any Subsidiary of a Target Company, on the other hand, other than this Agreement and the documents contemplated hereby;

(viii)          Each Contract containing covenants prohibiting or limiting the right of any Target Company or any Subsidiary of such Target Company to engage in or compete with any Person in any line of business in any respect that is material to such Target Company’s or such Subsidiary’s respective business;

(ix)            Each Contract containing “most favored nation,” “exclusivity” or similar provisions, in each case, other than any such Contract that may be cancelled without material liability to such Target Company or Subsidiary upon 90 days’ notice or less;

(x)             Each Contract (including license agreements, coexistence agreements, settlement agreements, and agreements with applicable covenants not to sue) pursuant to which any rights in Intellectual Property that are material to the business of Target Companies and their respective Subsidiaries, taken as whole, are (a) granted by any third party to a Target Company or any of their respective Subsidiaries, (b) granted by any Target Company or any of its respective Subsidiaries, or (c) developed by any Person for any Target Company or any of its respective Subsidiaries (in each case of (a), (b), and (c) excluding (A) “shrink-wrap” and “click-wrap” licenses, and other non-exclusive licenses, in each case, for generally commercially available software that has not been materially customized for any Target Company or any of its respective Subsidiaries’ use, including Open Source Licenses, (B) Contracts entered into in the ordinary course of business that contain only non-exclusive licenses of Intellectual Property that are incidental and ancillary to the primary purpose of the Contract, (C) non-disclosure agreements entered into in the ordinary course of business that do not transfer or license any rights in Epic Owned Intellectual Property, (D) Contracts with Epic Employees, independent contractors, or consultants of any Target Company or any Subsidiary of a Target Company, which Contracts are entered into in the ordinary course of business, and (E) incidental trademark licenses in Contracts for marketing or advertising);

(xi)            Collective Bargaining Agreement with a labor union, works council, or other Labor Organization representing employees of a Target Company or any of its respective Subsidiaries;

(xii)            Each Contract granting to any Person (other than a Target Company or any Subsidiary of a Target Company) a right of first refusal, first offer or similar preferential right to purchase or acquire equity interests in any Target Company, any Subsidiary of a Target Company or material assets of their respective businesses; and

(xiii)            Any authorization, commitment or agreement to take, whether in writing or otherwise, to enter into any Contract of the type described in subsections (i) through (xii) of this Section 4.12(a).

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(b)            Except for any Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date, all of the Contracts listed on Section 4.12(a) in the Epic Disclosure Letter (i) are in full force and effect and (ii) represent the legal, valid and binding obligations of such Target Company or the Subsidiary of such Target Company party thereto and, to the Knowledge of Epic, represent the legal, valid and binding obligations of the counterparties thereto. Except, in each case, where the occurrence of such breach or default or failure to perform would not have an Epic Material Adverse Effect, (x) such Target Company or one of its respective Subsidiaries, as applicable, has performed in all respects all respective material obligations required to be performed by it to date under such Contracts listed pursuant to Section 4.12(a), and no such Target Company or any of its respective Subsidiaries, nor, to the Knowledge of Epic, any other party thereto, is in breach of or default under any such Contract, (y) during the last 12 months, no such Target Company or its respective Subsidiaries has received any written claim or written notice of termination or breach of or default under any such Contract, and (z) to the Knowledge of Epic, no event has occurred which individually or together with other events, would reasonably be expected to result in a breach of or a default under any such Contract by such Target Company or one of its respective Subsidiaries or, to the Knowledge of Epic, any other party thereto (in each case, with or without notice or lapse of time or both).

(c)            Except as would not have an Epic Material Adverse Effect, all necessary and appropriate agreements to which Epic or any Subsidiary is a party for the operation of the Aircraft are in effect, including but not limited to operation, maintenance, support services, spare parts, crew training and other vendors.

Section 4.13          Epic Benefit Plans.

(a)            Section 4.13(a) of the Epic Disclosure Letter sets forth a complete list, as of the date hereof, of each material Epic Benefit Plan. With respect to each material Epic Benefit Plan, Epic has made available to SPAC, to the extent applicable, true, and complete copies of (i) such Epic Benefit Plan (or, if not written, a written summary thereof) and all plan documents, trust agreements, insurance Contracts or other funding vehicles and all amendments thereto, (ii) the most recent determination, opinion, or advisory letter from the U.S. Internal Revenue Service relating to the tax-qualified status of such Epic Benefit Plan, (iii) the two most recently filed annual reports (Form 5500 series), and (iv) the most recent summary plan description, including any summary of material modifications.

(b)            Except as would not reasonably be expected to result in material liability to the Target Companies: (i) each Epic Benefit Plan has been maintained, funded, operated and administered in compliance with its terms and all applicable Laws, including ERISA and the Code; (ii) all contributions or payments required to be made with respect to any Epic Benefit Plan on or before the date hereof have been made and all obligations in respect of each Epic Benefit Plan as of the date hereof have been accrued for or paid in full when and as required to be paid pursuant to the terms of any such Epic Benefit Plan; (iii) each Epic Benefit Plan which is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination, opinion or advisory letter from the IRS as to its qualification or may rely upon an opinion letter for a prototype plan and, to the Knowledge of Epic, no fact or event has occurred that would reasonably be expected to adversely affect the qualified status of any such Epic Benefit Plan.

(c)            None of the Target Companies or any of their respective Subsidiaries nor any of their ERISA Affiliates has, at any time within the previous six years, maintained, been a participating employer in, contributed to, or had any liability (contingent or otherwise) with respect to (i) a multiemployer pension plan (as defined in Section 3(37) of ERISA) (“Multiemployer Plan”), (ii) any other pension plan that is subject to Title IV of ERISA (“Title IV Plan”), (iii) a “multiple employer plan” (as defined in Section 4063 or Section 4064 of ERISA) or (iv) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). None of the Target Companies or any of their respective Subsidiaries nor any of their ERISA Affiliates has, at any time within the previous six years, incurred any withdrawal liability under Section 4201 of ERISA that has not been fully satisfied.

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(d)            With respect to each Epic Benefit Plan or any fiduciary or assets thereof, no actions, suits or claims (other than routine claims for benefits in the ordinary course) are pending or, to the Knowledge of Epic, threatened, in each case, except as would not reasonably be expected to result in material liability to the Target Companies.

(e)            No Epic Benefit Plan provides, or reflects or represents any obligation or liability of Target Companies or any of their respective Affiliates to provide, any welfare benefits (including retiree life insurance, retiree health benefits or other retiree employee welfare benefits) (whether or not insured) for any Person for periods extending beyond their retirement or other termination of service, other than (i) coverage mandated by applicable Law, (ii) death benefits under any “pension plan,” or (iii) benefits the full cost of which is borne by the current or former employee (or his or her beneficiary). Except as would not be expected to result in material liability to the Target Companies, none of the Target Companies or any of their respective Subsidiaries nor any of their ERISA Affiliates or any Epic Benefit Plan has incurred any liability under sections 4971 through 4980H, 6055 or 6056 of the Code.

(f)            There have been no material prohibited transactions as defined in Code Section 4975 or ERISA Section 406 with respect to any Company Benefit Plan.

(g)            Notwithstanding any provision herein to the contrary, each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) has at all times been in documentary and operational material compliance with Section 409A of the Code and all applicable guidance promulgated thereunder.

(h)            The per share exercise price of each Epic Option was more than or equal to the fair market value of a share of Epic Common Stock on the applicable grant date. There have been no, and as a result of the Closing of the Transactions, there will be no “disqualifying dispositions” of an incentive stock option pursuant to Section 422 of the Code. Each outstanding Epic Option has been duly authorized and validly issued.

(i)            Except as set forth on Section 4.13(i) of the Epic Disclosure Letter, the consummation of the Transactions will not, either alone or in combination with another event (such as termination following the consummation of the Transactions), (i) entitle any current or former employee, officer, or other individual service provider of any Target Company or any of their respective Subsidiaries to any severance pay or any other compensation or benefits payable or to be provided by any Target Company(other than statutory severance or termination payments that are required solely by reason of applicable Law), (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation or benefits due any current or former employee, officer, or other individual service provider of any Target Company or any of their respective Subsidiaries under any Epic Benefit Plan, or (iii) result in any “excess parachute payment” under Section 280G of the Code to any service provider of Epic or any of its Subsidiaries. No Epic Benefit Plan provides for a Tax gross-up, make whole or similar payment with respect to the Taxes imposed under Sections 409A or 4999 of the Code on any current or former employee, officer, or other individual service provider of the Company or Epic.

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Section 4.14          Labor Relations; Employees.

(a)            (i) Neither Epic nor any of its Subsidiaries is, or within the last three years has been, a party to or bound by any Collective Bargaining Agreement with any labor or trade union, works council, employee representative body or labor organization or association (collectively, a “Labor Organization”) covering any Epic Employee, (ii) no such Collective Bargaining Agreement is being, or within the last three years has been, negotiated by Epic or any of its Subsidiaries with any Labor Organization, (iii) no Epic Employee is, or within the last three years has been, represented by any Labor Organization with respect to their employment with Epic or any of its Subsidiaries, as applicable, (iv) no Labor Organization has, or to the Knowledge of Epic, within the last three years has been, requested or made a pending demand for recognition or certification or is seeking to organize or represent any of the Epic Employees with respect to their employment with Epic or any of its Subsidiaries, as applicable, and (v) to the Knowledge of Epic, no Labor Organization is or within the last three years has attempted to organize any employees of Epic or any of its Subsidiaries into one or more collective bargaining units.

(b)            In the three years prior to the date hereof, there has been no actual, pending or, to the Knowledge of Epic, threatened unfair labor practice charge, interruptions of work, grievance, arbitration, labor strike, work slowdown, work stoppage, lockout, picketing, hand billing, or other labor dispute with respect to the Epic Employees involving a Labor Organization or with respect to unionization or collective bargaining.

(c)            Each of the Target Companies is, and has been for the three years prior to the date hereof, in compliance in all material respects with all applicable Laws respecting labor and employment of the Epic Employees, including, but not limited to, all Laws respecting terms and conditions of employment, occupational health and safety, wages and hours, wage payment, employee record keeping, holiday pay and the calculation of holiday pay, working time, employee classification (with respect to both exempt vs. non-exempt status and employee vs. independent contractor and worker status), child labor, immigration (including applicable I-9 laws), employment discrimination, disability rights or benefits, reasonable accommodations, equal employment opportunity and equal pay, terms and conditions of workers’ compensation, labor relations and collective bargaining, employee leave issues and unemployment insurance. There is no pending or, to the Knowledge of Epic, threatened claim or investigation in respect of any such applicable Laws (including any employment discrimination charge or employment-related multi-claimant or class action claims), except as would not reasonably be expected to result in material liability to the Target Companies.

(d)            In the three years prior to the date hereof, none of Epic nor any of its Subsidiaries has received (i) notice of any unfair labor practice charge or material complaint pending or threatened before the National Labor Relations Board, National Mediation Board or any other Governmental Authority against them, (ii) notice of any material complaints, grievances or arbitrations arising out of any Collective Bargaining Agreement or any other complaints, grievances or arbitration procedures against them, (iii) notice of any material charge or complaint with respect to or relating to them pending before the Equal Employment Opportunity Commission or any other Governmental Authority responsible for the prevention of unlawful employment practices, (iv) notice of the intent of any Governmental Authority responsible for the enforcement of labor, employment, wages and hours of work, child labor, immigration, or occupational safety and health Laws to conduct an investigation with respect to or relating to them or notice that such investigation is in progress, or (v) notice of any material complaint, lawsuit or other proceeding pending or threatened in any forum by or on behalf of any present or former employee of such entities, any applicant for employment or classes of the foregoing alleging breach of any express or implied contract of employment, any applicable Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with the employment relationship.

(e)            In the three years prior to the date hereof, neither Epic nor any of its Subsidiaries has incurred any material liability or obligation under the Worker Adjustment and Retraining Notification Act of 1988, 29 U.S.C. § 2101 et seq., or any similar applicable Laws (collectively, the “WARN Act”) that remains unsatisfied.

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Section 4.15      Taxes.

(a)            All material Tax Returns required to be filed by or with respect to Epic or its Subsidiaries have been timely filed (taking into account any applicable extensions) with the appropriate Governmental Authority and all such Tax Returns are true, correct and complete in all material respects, and all material Taxes of Epic or its Subsidiaries due and payable (whether or not shown on any Tax Return) for periods covered by the Epic Financial Statements have been fully and timely paid (taking into account any applicable extensions), other than Taxes being contested in good faith and for which adequate reserves have been established in the Epic Financial Statements in accordance with GAAP.

(b)            Each of Epic and its Subsidiaries has withheld from amounts owing to any employee, creditor or other Person all material Taxes required by Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over, and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes required to be withheld.

(c)            There are no Liens (other than Permitted Liens) for material Taxes upon the property or assets of Epic and its Subsidiaries.

(d)            To the Knowledge of Epic, no written claim, assessment, deficiency or proposed adjustment for any material amount of Tax due or payable by Epic or its Subsidiaries has been asserted or assessed within the past three years by any Governmental Authority against Epic or its Subsidiaries that remains unresolved or unpaid except for claims, assessments, deficiencies or proposed adjustments being contested in good faith and for which adequate reserves have been established in the Epic Financial Statements in accordance with GAAP.

(e)            There are no ongoing or pending Legal Proceedings against Epic or its Subsidiaries with respect to any material Taxes due or payable, and there are no waivers, extensions or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of Epic or any of its Subsidiaries that are due or payable (other than ordinary course extensions of time to file Tax Returns).

(f)            No written claim has been made by any Governmental Authority where Epic or any of its Subsidiaries does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.

(g)           None of Epic or any of its Subsidiaries is a party to any Tax indemnification or Tax sharing or similar agreement (other than any such agreement solely between Epic and its Subsidiaries and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).

(h)            None of Epic or any of its Subsidiaries has been a party to any transaction treated by the parties as a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the two years prior to the date of this Agreement.

(i)            None of Epic or any of its Subsidiaries is liable for Taxes of any other Person (other than any Subsidiary of Epic) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).

(j)            None of Epic or any of its Subsidiaries has participated in a “listed transaction” within the meaning of Section 6707A(c)(2) of the Code and Treasury Regulation Section 1.6011-4(b)(2).

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(k)            Neither Epic nor any of its Subsidiaries has knowingly taken or caused to be taken, or knowingly failed to take or cause to be taken, any action, and to the Knowledge of Epic and its Subsidiaries, as of the date hereof, there are no facts or circumstances, that could reasonably be expected to prevent the Company Merger and the PIPE Investment from qualifying for the Company Merger Intended Tax Treatment.

(l)            As of the Closing Date, Pre-Closing Acquisition Target (as defined in Schedule 1.1) is, and has at all times since its formation been, properly treated as a partnership or a disregarded entity for U.S. federal and applicable state and local income Tax purposes.

(m)            None of Epic or any of its Subsidiaries organized under the Laws of a country other than the United States is a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or is treated as a U.S. corporation under Section 7874(b) of the Code.

(n)            Neither Epic nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item or deduction from, taxable income for any taxable period beginning after the Closing Date or, in the case of any taxable period beginning on or before and ending after the Closing Date, the portion of such period beginning after the Closing Date, as a result of: (i) an installment sale or open transaction disposition that occurred on or prior to the Closing Date other than in the ordinary course of business; (ii) any change in method of accounting on or prior to the Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Law); (iii) any prepaid amount received or deferred revenue recognized on or prior to the Closing Date, other than in respect of such amounts reflected in the balance sheets included in the Epic Financial Statements, or received in the ordinary course of business since the date of the most recent balance sheet included in the Epic Financial Statements; (iv) any intercompany transaction described in Treasury Regulations under Section 1502 (or any corresponding or similar provision of state or local Laws); (v) any closing agreement pursuant to Section 7121 of the Code or any similar provision of state, local or foreign Law or (vi) a “domestic use election” under Section 1503(d) of the Code or a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-8.

Notwithstanding anything to the contrary contained herein, none of the representations or warranties contained elsewhere in Article IV shall relate to Tax matters, which are instead the subject of Section 4.13 and this Section 4.15 exclusively.

Section 4.16      Real Property.

(a)            Section 4.16(a) of the Epic Disclosure Letter sets forth a true, correct and complete list of all Leased Real Property and all Real Property Leases pertaining to such Leased Real Property. With respect to each parcel of Leased Real Property:

(i)            Epic holds a good and valid leasehold estate in such Leased Real Property, free and clear of all Liens, except for Permitted Liens.

(ii)           Epic has made available to SPAC true, correct and complete copies of all leases, licenses, lease guaranties, subleases, agreements for the leasing, use or occupancy of, or otherwise granting a right in and to the Leased Real Property by or to Epic, including all amendments and modifications thereof (collectively, the “Real Property Leases”), and none of such Real Property Leases have been modified in any material respect, except to the extent that such modifications have been disclosed by the copies delivered to SPAC.

(iii)          No party, other than Epic or its Subsidiaries, as applicable, has any right to use or occupy the Leased Real Property or any portion thereof.

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(iv)          None of Epic or any of its Subsidiaries has received written notice of any current condemnation proceeding or proposed similar Action or agreement for taking in lieu of condemnation with respect to any portion of the Leased Real Property.

(v)            None of Epic or any of its Subsidiaries, nor, to the Knowledge of Epic, any other party thereto, is in material breach of or material default under any Real Property Leases.

(vi)            None of Epic or any of its Subsidiaries has assigned, transferred or pledged any interest in any of the Real Property Leases.

(b)           Epic does not own any real property. None of Epic nor any of its Subsidiaries is obligated or bound by any options, obligations or rights of first refusal or contractual rights to sell, lease or acquire any real property (except under the Real Property Leases).

Section 4.17      Intellectual Property.

(a)            Section 4.17(a) of the Epic Disclosure Letter lists each item of Epic Owned IP that is registered, issued, or applied-for with a Governmental Authority or other applicable registrar (including Internet domain names) (“Epic Registered Intellectual Property”). A Target Company or one of their respective Subsidiaries is the sole and exclusive beneficial and, as applicable, record owner of all of the Epic Owned IP, free and clear of all Liens other than Permitted Liens. All Epic Registered Intellectual Property is subsisting and, to the Knowledge of Epic, excluding any pending applications included in the Epic Registered Intellectual Property, is valid and enforceable.

(b)            Except as would not reasonably be expected to have a material adverse impact on the business of the Target Companies and their Subsidiaries, taken as a whole no Target Company or any of their respective Subsidiaries has, in the past three years, infringed, misappropriated or otherwise violated and are not infringing, misappropriating or otherwise violating any Intellectual Property of any third Person. As of the date hereof, there is no Action pending to which a Target Company or any of their respective Subsidiaries is a named party, or, to the Knowledge of Epic, threatened against a Target Company or any of their respective Subsidiaries in writing, alleging that such Target Company or any of their respective Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property of any third Person, or challenging the scope, validity, ownership or enforceability of any Epic Owned IP (other than responses or correspondence from Governmental Authorities in the ordinary course of prosecution of Epic Registered Intellectual Property).

(c)            To the Knowledge of Epic, no third Person is infringing, misappropriating or otherwise violating, and has not in the past three years infringed, misappropriated, or otherwise violated, any Epic Owned IP, except for such infringements, misappropriations, or other violations that would not reasonably be expected to be material to the business of the Target Companies and their Subsidiaries, taken as a whole.

(d)            Except as would not reasonably be expected to have a material adverse impact on the business of the Target Companies and their Subsidiaries, taken as a whole (i) each Target Company and its respective Subsidiaries takes commercially reasonable measures to protect the confidentiality of Trade Secrets included in the Epic Owned IP including by requiring that Persons to whom any such Trade Secrets are or have been disclosed execute a written Contract that includes confidentiality provisions that are reasonably protective of such Trade Secrets, and (ii) to the Knowledge of Epic, there has not been any unauthorized disclosure of or unauthorized access to any material Trade Secrets included in the Epic Owned IP to or by any Person.

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(e)            Except as would not reasonably be expected to have a material adverse impact on the business of the Target Companies and their Subsidiaries, taken as a whole, all Persons who have participated in or contributed to the creation or development of any material Epic Owned IP have executed written agreements pursuant to which such Person’s entire right, title and interest in and to any such Epic Owned IP has been assigned to the Company or Epic or one of their respective Subsidiaries (or such right, title, and interest vested in a Target Company or one of its respective Subsidiaries by operation of Law).

(f)            Except as would not reasonably be expected to have a material adverse impact on the business of the Target Companies and their Subsidiaries, taken as a whole, the IT Systems are (i) able to perform the information technology operations required to operate the business of the Target Companies and their respective Subsidiaries as currently operated, and (ii) to the Knowledge of Epic, do not contain and have not been materially affected by, any virus, malware, worm, Trojan horse, or other disabling codes or instructions. Epic has not experienced a material outage of the IT Systems during the past two years where such effects on the IT Systems have not been cured in all material respects. None of the Target Companies or any of their Subsidiaries has delivered, licensed or made available to any escrow agent or other Person any source code that is material Epic Owned IP except for disclosures to employees and independent contractors for Target Companies or their Subsidiaries that are subject to written confidentiality obligations to maintain the confidentiality of such source code and who have had such access only during the term of their employment by or provision of services to the Target Companies and their Subsidiaries. None of the Target Companies or any of their Subsidiaries has any duty or obligation to deliver, license or make available the source code that is material Epic Owned IP to any escrow agent or other Person.

(g)            The manner in which any software licensed under any Open Source License is incorporated into, linked to or called by, or otherwise combined or distributed with any software that is material Epic Owned IP does not, according to the terms of the applicable Open Source License, obligate any Target Company or any of its Subsidiaries to: (i) disclose, make available, offer or deliver all or any portion of any source code that is Epic Owned IP to any third party, or (ii) create obligations for the Target Companies or any of their Subsidiaries to grant, or purport to grant, to any third party any rights or immunities under any Epic Owned IP.

Section 4.18      Insurance. Except as would not, individually or in the aggregate, reasonably be expected to have an Epic Material Adverse Effect, all policies or binders of property, fire and casualty, product liability, workers’ compensation, and other forms of insurance held by, or for the benefit of, the Target Companies or any of their respective Subsidiaries, in each case as of the date of this Agreement, are in full force and effect, all premiums due and payable have been paid, no notice of cancellation or termination has been received by such Target Company or any of its respective Subsidiaries with respect to any such policy, and no insurer has denied or disputed coverage of any material claim during the last 12 months (other than a customary reservation of rights notice).

Section 4.19      Privacy and Cybersecurity.

(a)            Each of Epic and its Subsidiaries and, with respect to the Processing of Epic Data and to the Knowledge of Epic, its Data Processors, are in compliance, and for the last three years have been in compliance, in all material respects with Epic Privacy Policies and Privacy Requirements, including any international transfers of Personal Data. Epic and its Subsidiaries have not sold, and do not sell, any Personal Data to Persons or other third parties, as those terms are defined by the California Consumer Privacy Act of 2018. Neither the execution, delivery or performance of this Agreement nor any of the other agreements contemplated by this Agreement, nor the consummation of any of the Transactions will materially violate any Privacy Requirements or Epic Privacy Policies.

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(b)           There are not, and for the past three years have not been, any Actions by any Person, or any investigations by any Governmental Authority, pending to which Epic or any of its Subsidiaries is a named party or, to the Knowledge of Epic, threatened in writing against Epic alleging a violation of any Privacy Requirements.

(c)            Except as would not, individually or in the aggregate, reasonably be expected to result in an Epic Material Adverse Effect, Epic, its Subsidiaries and, to the Knowledge of Epic, its Data Processors, in the past three years have not suffered and are not suffering a Security Incident and in the past three years have not been and are not required to notify any Person or Governmental Authority of any Security Incident and have not been and are not adversely affected by any malicious code, ransomware or malware attacks, or denial-of-service attacks on any IT Systems.

(d)            Epic and each of its Subsidiaries has established an Information Security Program that is appropriately implemented and maintained, and, there have been no material violations of the Information Security Program in the past three years. Except as would not, individually or in the aggregate, reasonably be expected to result in an Epic Material Adverse Effect, the Information Security Program is compliant with Privacy Requirements. The IT Systems currently used by Epic and its Subsidiaries operate and perform as necessary to conduct the business of Epic and its Subsidiaries and do not contain any malicious code or defect that would reasonably be expected to materially affect Epic and its Subsidiaries. To the Knowledge of Epic, all Epic Data will continue to be available for Processing by Epic following the Closing on substantially the same terms and conditions as existed immediately before the Closing.

Section 4.20      Environmental Matters.

(a)            Each of Epic and its Subsidiaries is and, for the past three years, has been in, compliance with all applicable Environmental Laws except where any such failure to comply would not reasonably be expected to have an Epic Material Adverse Effect.

(b)            There has been no Release of, or exposure to, any Hazardous Materials by Epic or any of its Subsidiaries, or, to the Knowledge of Epic, any other Person, at, in, on, under or from any Leased Real Property that would reasonably be expected to have an Epic Material Adverse Effect

(c)            None of Epic or any of its Subsidiaries is subject to any Governmental Order relating to any non-compliance with or violation of Environmental Laws or relating to Hazardous Materials, including the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Materials, which Governmental Order would reasonably be expected to have an Epic Material Adverse Effect.

(d)            No Legal Proceeding is pending or, to the Knowledge of Epic, threatened against Epic or any of its Subsidiaries for, and neither Epic nor any of its Subsidiaries has received written notice of any non-compliance with, violation of, or liability under Environmental Laws that, in each case, would reasonably be expected to have an Epic Material Adverse Effect.

(e)            Neither Epic nor any of its Subsidiaries has assumed or provided indemnity against any liability of any third party under Environmental Law that would reasonably be expected to have an Epic Material Adverse Effect.

(f)            Epic has made available to SPAC true, correct and complete copies of all phase 1 or phase 2 environmental site assessments that are in Epic’s possession or control, and relate to the Leased Real Property or to the business or operation of the Company or any Subsidiary.

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Section 4.21      Absence of Changes. From the date of the most recent balance sheet included in the Epic Financial Statements to the date of this Agreement, there has not occurred any Epic Material Adverse Effect.

Section 4.22      Anti-Corruption Compliance.

(a)            For the past three years, the Target Companies, their respective Subsidiaries, or, to the Knowledge of Epic, any director, officer, employee or agent acting on behalf thereof, have not offered, promised, or given, directly or indirectly, anything of value in any material amount to a Government Official.

(b)            For the past three years, the Target Companies, their respective Subsidiaries, and, to the Knowledge of Epic, any director, officer, employee or agent acting on behalf thereof, are and have been in compliance with all Anti-Corruption Laws, except as such violation would not have an Epic Material Adverse Effect.

(c)            Epic and its respective Subsidiaries have instituted and maintain policies and procedures reasonably designed to ensure compliance in all material respects with all Anti-Corruption Laws.

(d)            To the Knowledge of Epic, as of the date hereof, there are no current or pending internal investigations, third-party investigations (including by any Governmental Authority), or internal or external audits that address any material allegations or information concerning possible material violations of any Anti-Corruption Laws specifically involving any Target Company or any of their respective Subsidiaries.

Section 4.23      Sanctions and International Trade Compliance.

(a)            The Target Companies, their respective Subsidiaries, and to the Knowledge of Epic, their respective Representatives (i) are, and have been for the past two years, in compliance in all material respects with all International Trade Laws and Sanctions Laws, and (ii) have obtained all required licenses, consents, notices, waivers, approvals, orders, registrations, declarations, or other authorizations from, and have made any material filings with, any applicable Governmental Authority for the import, export, re-export, deemed export, deemed re-export, or transfer required under the International Trade Laws and Sanctions Laws (the “Export Approvals”). There are no pending or, to the Knowledge of Epic, threatened, claims, complaints, charges, investigations, voluntary disclosures or Legal Proceedings against any Target Company or its respective Subsidiaries related to any International Trade Laws or Sanctions Laws or any Export Approvals.

(b)            None of the Target Companies, their respective Subsidiaries, or to the Knowledge of Epic, their respective Representatives, (i) is, or has during the past two years, been a Sanctioned Person; or (ii) has transacted business directly or knowingly indirectly with any Sanctioned Person or in any Sanctioned Country in violation of Sanctions Laws.

Section 4.24      Compliance with Aviation Laws. Without limiting any representation made in Section 4.4, Section 4.5 and Section 4.10:

(a)            To the Knowledge of Epic, each current employee of Epic and its Subsidiaries currently providing any flight, maintenance, operation or handling of any aircraft owned, leased or operated by Epic or its Subsidiaries as of the date hereof (the “Aircraft”) has all material required Licenses, certifications, training and competencies to provide such flight, maintenance, operation or handling of such Aircraft.

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(b)            All Aircraft that are in operation are properly registered on an Aviation Authority aircraft registry and have a validly issued certificate of airworthiness without limitations of any kind that is in full force and effect (except for the period of time any Aircraft may be out of service and such certificate is suspended in connection therewith).

(c)            Except as would not reasonably be expected to result in material liability to the Target Companies or their respective Subsidiaries, upon acquisition or lease by Epic or any of its Subsidiaries, all Aircraft have been for the past three years and as of immediately prior to the Closing are maintained according to applicable regulatory standards and the maintenance program of the aircraft operator approved by the applicable Aviation Authority.

(d)            Except as would not reasonably be expected to result in material liability to the Target Companies or their respective Subsidiaries, all records required by applicable Law to be maintained for each Aircraft are correct and complete and are currently in the possession of Epic or its Subsidiaries.

(b)            Epic, and any Subsidiary of Epic acting as an “Air Carrier” as defined in 49 USC § 40102(a)(2), is, and at the Effective Time shall be, a “Citizen of the United States” as defined in 49 USC § 40102(a)(15)(C).

(c)            Each of Epic’s Subsidiaries listed on Section 4.24(c) of the Epic Disclosure Letter holds the “Air Carrier Certificate” pursuant to 14 CFR Part 119 or non-United States equivalent set forth for such Subsidiary on Section 4.24(c) of the Epic Disclosure Letter.

Section 4.25      Registration Statement and Proxy Statement. None of the information relating to the Target Companies or their respective Affiliates supplied by the Target Companies or their respective Affiliates in writing for inclusion in the Proxy Statement/Prospectus or Registration Statement will, as of the effective date of the Registration Statement, as of the date the Proxy Statement/Prospectus is mailed to the SPAC Shareholders, and in the case of any amendment or supplement thereto, as of the time of such amendment or supplement, and at the time of the SPAC Shareholders’ Meeting, or at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Target Companies make no representations or warranties as to any information supplied by or on behalf of SPAC or Merger Sub 1.

Section 4.26      Brokers’ Fees. No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by any Target Companies or any of their respective Affiliates for which SPAC or any Target Company or any of their respective Subsidiaries has any obligation.

Section 4.27      Related Party Transactions. No Target Company or any of its Subsidiaries has purchased or leased any material property or services from, or sold, transferred or leased any material property or service to, or loaned or advanced a material amount of money to, or borrowed a material amount of money from or guaranteed any obligation of any of their Affiliates, or its or their Affiliates’ directors, officers, partners, executors, immediate family members, or trustees, except for (i) loans and other extensions of credit to officers and employees of the Target Companies and their Subsidiaries for travel, business or relocation expenses or other loans and other extensions of credit, which are, individually and in the aggregate, immaterial, made for employment-related purposes in the ordinary course of business, (ii) pursuant to any Epic Benefit Plan, (iii) Contracts among the Target Companies and any of their Subsidiaries or among such Subsidiaries, (iv) Contracts listed on Section 4.12(a) in the Epic Disclosure Letter, or (v) commercial transactions entered into in the ordinary course of business on arms’ length terms.

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Section 4.28      Business Activities.

(a)            Since formation, neither Flexjet, the Company nor Merger Sub 2 has conducted any business activities other than activities set forth in this Agreement or in connection with the Transactions, including the Pre-Closing Reorganization and, for the avoidance of doubt, with respect to the Company, including such business activities that the Company may conduct as a parent entity of Epic and its Subsidiaries in compliance with this Agreement. Except as contemplated by this Agreement or the Ancillary Agreements and the Transactions, there is no agreement, commitment, or Governmental Order binding upon Flexjet, the Company or Merger Sub 2 or to which Flexjet, the Company or Merger Sub 2 is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of Flexjet, the Company or Merger Sub 2 or any acquisition of property by Flexjet, the Company or Merger Sub 2 or the conduct of business by Flexjet, the Company or Merger Sub 2 as currently conducted or as contemplated to be conducted as of the Closing, other than such effects, individually or in the aggregate, which have not been and would not reasonably be expected to be material to Flexjet, the Company or Merger Sub 2 taken as a whole.

(b)           Except for the Transactions, neither Flexjet, the Company nor Merger Sub 2 owns or has a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Ancillary Agreements and the Transactions, neither Flexjet, the Company nor Merger Sub 2 has any material interests, rights, obligations or liabilities with respect to, and is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or would reasonably be interpreted as constituting, an Alternative Proposal.

(c)            Flexjet, the Company and Merger Sub 2 were formed solely for the purpose of effecting the Transactions and have not engaged in any business activities or conducted any operations other than in connection with the Transactions (including, for the avoidance of doubt, with respect to the Company, such business activities or operations that the Company may engage in or conduct as a parent entity of Epic and its Subsidiaries in compliance with this Agreement) and has no, and at all times prior to the SPAC Merger Effective Time, except as expressly contemplated by this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, will have no, assets, liabilities or obligations of any kind or nature whatsoever other than those incident to its formation or that arise in connection with the Transactions (including, for the avoidance of doubt, with respect to the Company, that arise in connection with the Company being the parent entity of Epic and its Subsidiaries in compliance with this Agreement).

Notwithstanding anything to the contrary contained herein, none of the representations or warranties contained in this Section 4.28 shall relate to (i) Epic or its Subsidiaries in any way (including by virtue of Epic or its Subsidiaries becoming Subsidiaries of the Company upon the Pre-Closing Reorganization) and (ii) Flexjet from and upon the SPAC Merger.

Section 4.29       No Reliance. Notwithstanding anything contained in this Article IV or any other provision hereof, each of the Target Companies and its respective Representatives acknowledges and agrees that such Target Company has made its own investigation of SPAC and that neither SPAC nor Merger Sub 1, nor any of their respective Affiliates or Representatives, is making, and each of the Target Companies specifically disclaims that they or any other Person is relying upon or has relied upon any, representation or warranty whatsoever, express or implied, beyond those expressly given by SPAC or Merger Sub 1 in Article V, including any implied warranty or representation as to condition, merchantability, fitness for a particular purpose, future results, proposed businesses or future plans of SPAC. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions that may be contained or referred to in the SPAC Disclosure Letter or elsewhere, as well as any information, documents or other materials (including any such materials contained in any “data room” (whether or not accessed by the Target Companies or their respective Representatives) or reviewed by the Target Companies pursuant to the Confidentiality Agreement) or management presentations that have been or shall hereafter be provided to the Target Companies or any of their respective Affiliates or Representatives are not and will not be deemed to be representations or warranties of SPAC, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Article V of this Agreement. Except as otherwise expressly set forth in this Agreement, the Target Companies understand and agree that any assets, properties and business of SPAC and Merger Sub 1 are furnished “as is,” “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article V, with all faults and without any other representation or warranty of any nature whatsoever.

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Section 4.30       No Additional Representation or Warranties. Except as expressly provided in this Article IV, none of the Target Companies nor any of their respective Affiliates, nor any of their respective Representatives has made, or is making, any representation or warranty whatsoever, express or implied, at law or in equity, to SPAC or its Affiliates or any other Person, including any implied representation or warranty as to condition, merchantability, fitness for a particular purpose, future results, proposed businesses or future plans of such Target Company, and no such party shall be liable in respect of the accuracy or completeness of any documentation or other information provided to SPAC or its Affiliates or any other Person, including information, documents, projections, forecasts or other material made available to SPAC, its Affiliates or Representatives in any “data rooms,” management presentations or otherwise in connection with the transactions contemplated in this Agreement and the Ancillary Agreements and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon by any Party in executing, delivering or performing this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby. Except for the representations and warranties expressly set forth in this Article IV or the Ancillary Agreements, it is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering materials or presentations, including any offering memorandum or similar materials made available by or on behalf of such Target Company are not and shall not be deemed to be or to include representations or warranties of the Target Companies or any other Person, and are not and shall not be deemed to be relied upon by any Party in executing, delivering or performing this Agreement, the Ancillary Agreements or the Transactions.

Article V
REPRESENTATIONS AND WARRANTIES OF SPAC and MERGER SUB 1

Except as set forth in (a) any SPAC SEC Filings filed or submitted on or prior to the date hereof (excluding any disclosures in any risk factors section that do not constitute statements of fact, disclosures in any forward-looking statements disclaimer and other disclosures that are generally cautionary, predictive or forward-looking in nature) or (b) the Disclosure Letter delivered by SPAC to the Target Companies (the “SPAC Disclosure Letter”) on the date of this Agreement, subject to Section 11.11, each of SPAC and Merger Sub 1 represents and warrants, only with respect to such representations and warranties in this Article V, to the Target Companies as follows:

Section 5.1         Organization. Each of SPAC and Merger Sub 1 has been duly incorporated, formed or organized, as applicable, and is validly existing and in good standing (or equivalent status, to the extent that such concept exists) under the Laws of its jurisdiction of incorporation, formation or organization, as applicable, and has the requisite corporate power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. The copies of SPAC’s Organizational Documents available as part of the SPAC SEC Filings and the Organizational Documents of Merger Sub 1 previously delivered by SPAC to Epic, in each case, as amended and in effect to the date of this Agreement, are true, correct and complete. Merger Sub 1 has no assets or operations other than those required to effect the Transactions. All of the equity interests of Merger Sub 1 are held directly by SPAC. Each of SPAC and Merger Sub 1 is duly licensed or qualified and in good standing as a foreign corporation or company in all jurisdictions in which its ownership of property or the character of its activities is such as to require it to be so licensed or qualified or in good standing, as applicable, except where failure to be so licensed or qualified or in good standing would not have, and would not reasonably be expected to have, individually or in the aggregate, a SPAC Material Adverse Effect.

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Section 5.2         Due Authorization.

(a)            Each of SPAC and Merger Sub 1 has all requisite power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party contemplated hereby, and (subject to the approvals described in Section 5.8) to consummate the Transactions and to perform all obligations to be performed by it hereunder and thereunder. The execution and delivery of this Agreement and each Ancillary Agreement to which SPAC or Merger Sub 1 is a party contemplated hereby and the consummation of the Transactions have been (A) duly and validly authorized and approved by the SPAC Board, by the Board of Managers of Merger Sub 1 and by SPAC as the sole stockholder of Merger Sub 1, and (B) determined by the SPAC Board as advisable to SPAC and the SPAC Shareholders, and recommended for approval by SPAC Shareholders. No other company or corporate proceeding on the part of SPAC or Merger Sub 1 is necessary to authorize this Agreement and each Ancillary Agreement to which SPAC or Merger Sub 1 is a party contemplated hereby (other than the SPAC Shareholder Approval). This Agreement has been, and at or prior to the Closing, the Ancillary Agreements to which SPAC or Merger Sub 1 is a party contemplated hereby will be, duly and validly executed and delivered by SPAC or Merger Sub 1, as applicable, and this Agreement constitutes, and on or prior to the Closing, the Ancillary Agreements to which SPAC or Merger Sub 1 is a party contemplated hereby will constitute, a legal, valid and binding obligation of each of SPAC and Merger Sub 1 (assuming that this Agreement and such Ancillary Agreements are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other parties thereto), as applicable, enforceable against SPAC and Merger Sub 1 in accordance with its and their respective terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.

(b)           Assuming that a quorum (as determined pursuant to SPAC’s Organizational Documents) is present:

(i)            each of those Transaction Proposals identified in clauses (A) and (B) of Section 8.2(b)(ii), in each case, shall require approval by an affirmative vote of the holders of at least two-thirds of the outstanding shares of SPAC Common Stock entitled to vote, who attend and vote thereupon (as determined in accordance with SPAC’s Organizational Documents) at a shareholders’ meeting duly called by the SPAC Board and held for such purpose; and

(ii)            each of those Transaction Proposal identified in clauses (C), (D), (E), (F), (G), (H) and (I) of Section 8.2(b)(ii), in each case, shall require approval by an affirmative vote of the holders of a majority of the outstanding shares of SPAC Common Stock entitled to vote, who attend and vote thereupon (as determined in accordance with SPAC’s Organizational Documents) at a shareholders’ meeting duly called by the SPAC Board and held for such purpose.

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(c)           The foregoing votes are the only votes of any of SPAC’s share capital necessary in connection with entry into this Agreement by SPAC and the consummation of the Transactions, including the Closing.

(d)            At a meeting duly called and held, the SPAC Board has unanimously approved the Transactions as a Business Combination.

Section 5.3         No Conflict. Subject to the receipt of the consents, approvals, authorizations and other requirements set forth in Section 5.8, the execution and delivery of this Agreement by SPAC and Merger Sub 1 and each Ancillary Agreement to which SPAC or Merger Sub 1 is a party contemplated hereby and the consummation of the Transactions do not and will not (a) violate or conflict with any provision of, or result in the breach of or default under the Organizational Documents of SPAC or Merger Sub 1, (b) violate or conflict with any provision of, or result in the breach of, or default under any applicable Law or Governmental Order applicable to SPAC or Merger Sub 1, (c) violate or conflict with any provision of, or result in the breach of, result in the loss of any right or benefit, or cause acceleration, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, cancellation or acceleration) under any Contract to which SPAC or Merger Sub 1 is a party or by which SPAC or Merger Sub 1 may be bound, or terminate or result in the termination of any such Contract or (d) result in the creation of any Lien upon any of the properties or assets of SPAC or Merger Sub 1, except, in the case of clauses (b) through (d), to the extent that the occurrence of the foregoing would not have a SPAC Material Adverse Effect.

Section 5.4         Litigation and Proceedings. As of the date hereof, (a) there are no pending or, to the Knowledge of SPAC, threatened Legal Proceedings against SPAC or Merger Sub 1; and (b) there is no outstanding Governmental Order imposed upon SPAC or Merger Sub 1, nor any of their properties or assets, except, in the case of clauses (a) and (b), as would not, individually or in the aggregate, have a SPAC Material Adverse Effect.

Section 5.5         Legal Compliance.

(a)            Neither SPAC nor Merger Sub 1 is, or since their respective incorporation, organization or formation, as applicable, has been, in violation of any Laws applicable to SPAC or Merger Sub 1, respectively, except as such violation would not have, individually or in the aggregate, a SPAC Material Adverse Effect.

(b)            Each of SPAC and Merger Sub 1 holds all Licenses necessary under applicable Laws for the conduct of their respective businesses as currently conducted and to own, lease or operate their respective properties (which Licenses are valid and in full force and effect) and are, and have always been, in compliance with the terms of such Licenses, except as would not be, individually or in the aggregate, have a SPAC Material Adverse Effect.

(c)            Neither SPAC, Merger Sub 1, nor, to the Knowledge of SPAC, any of their respective officers, directors or employees thereof acting in such capacity, has ever received any written notice of, or been charged with, the violation of any Laws, which, individually or in the aggregate, would have a SPAC Material Adverse Effect.

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Section 5.6         SEC Filings. SPAC has timely filed or furnished all statements, prospectuses, registration statements, forms, reports and documents required to be filed or furnished by it prior to the date of this Agreement with the SEC, pursuant to the Exchange Act or the Securities Act since October 19, 2020 (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of their filing through the date hereof, the “SPAC SEC Filings”), and, as of the Closing Date, will have filed or furnished all other statements, prospectuses, registration statements, forms, reports and other documents required to be filed or furnished by it subsequent to the date of this Agreement with the SEC pursuant to the Exchange Act or the Securities Act through the Closing Date (collectively, and together with any exhibits and schedules thereto and other information incorporated therein, and as they have been supplemented, modified or amended since the time of their filing, but excluding the Registration Statement and the Proxy Statement/Prospectus, the “Additional SPAC SEC Filings”). Each of the SPAC SEC Filings, as of the respective date of its filing, and as of the date of any amendment or filing that superseded the initial filing, complied, and each of the Additional SPAC SEC Filings, as of their respective dates of filing, and as of the date of any amendment or filing that superseded the initial filing, will comply, in all material respects with the applicable requirements of the Securities Act, the Exchange Act, the Sarbanes-Oxley Act and any rules and regulations promulgated thereunder applicable to the SPAC SEC Filings or the Additional SPAC SEC Filings. As of the respective date of its filing (or if amended or superseded by a filing prior to the date of this Agreement or the Closing Date, then on the date of such filing), the SPAC SEC Filings did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. As of the date hereof, there are no outstanding or unresolved comments in comment letters received from the SEC with respect to the SPAC SEC Filings. To the Knowledge of SPAC, none of the SPAC SEC Filings filed on or prior to the date hereof is subject to ongoing SEC review or investigation as of the date hereof.

Section 5.7         Internal Controls; Listing; Financial Statements.

(a)            Except as not required in reliance on exemptions from various reporting requirements by virtue of SPAC’s status as an “emerging growth company” within the meaning of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012 (“JOBS Act”), or “smaller reporting company” within the meaning of the Exchange Act, since its inception, (i) SPAC has established and maintained disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-5 under the Exchange Act) that are designed to ensure that material information relating to SPAC, including its consolidated Subsidiaries, if any, is made known to SPAC’s principal executive officer and its principal financial officer by others within those entities, and (ii) SPAC has established and maintained a system of internal controls over financial reporting (as defined in Rule 13a-15 and Rule 15d-5 under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of SPAC’s financial reporting and the preparation of the SPAC Financial Statements for external purposes in accordance with GAAP. As of the date hereof, such disclosure controls and procedures are effective in timely alerting SPAC’s principal executive officer and principal financial officer to material information required to be included in SPAC’s periodic reports required under the Exchange Act.

(b)            Each director and executive officer of SPAC has filed with the SEC on a timely basis all statements required by Section 16(a) of the Exchange Act and the rules and regulations promulgated thereunder.

(c)            As of the date hereof and as of immediately prior to the SPAC Merger, SPAC is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the NYSE. SPAC Class A Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed for trading on the NYSE. As of the date hereof and as of immediately prior to the SPAC Merger, there is no Legal Proceeding pending or, to the Knowledge of SPAC, threatened against SPAC by the NYSE or the SEC with respect to any intention by such entity to deregister SPAC Class A Common Stock or prohibit or terminate the listing of SPAC Class A Common Stock on the NYSE.

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(d)           The SPAC SEC Filings contain true, correct and complete copies of the audited balance sheet as of December 31, 2021, and statement of operations, cash flow and changes in shareholders’ equity of SPAC for the period from July 22, 2020 (inception), through December 31, 2021, and the unaudited balance sheet as of June 30, 2022, and statement of operations, cash flow and changes in shareholders’ equity of SPAC for the six-month period ending June 30, 2022, in each case, together with the notes thereon (the “SPAC Financial Statements”). The SPAC Financial Statements (i) have been prepared from the books and records of SPAC, (ii) present fairly, in all material respects, the state and the financial position of SPAC, as at the respective dates thereof, and the results of its operations and consolidated cash flows for the respective periods then ended, (iii) in the case of the audited SPAC Financial Statements, were audited in accordance with the standards of the PCAOB, and in each case have been prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto), and (iv) comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC, the Exchange Act and the Securities Act in effect as of the respective dates thereof (including Regulation S-X or Regulation S-K, as applicable). The books and records of SPAC have been, and are being, maintained in all material respects in accordance with GAAP and any other applicable legal and accounting requirements.

(e)           There are no outstanding loans or other extensions of credit made by SPAC to any executive officer (as defined in Rule 3b-7 under the Exchange Act) or director of SPAC. SPAC has not taken any action prohibited by Section 402 of the Sarbanes-Oxley Act.

(f)            Except as set forth on Section 5.7(f) of the SPAC Disclosure Letter, SPAC has not received any written notification of (i) any “significant deficiency” in the system of internal accounting controls utilized by SPAC, (ii) any fraud that involves SPAC’s management or other employees of SPAC who have a significant role in the preparation of financial statements or the internal accounting controls utilized by SPAC, or (iii) any claim or allegation regarding any of the foregoing.

Section 5.8         Governmental Authorities; Consents. Assuming the truth and completeness of the representations and warranties of the Target Companies contained in this Agreement, no consent, waiver, approval or authorization of, or designation, declaration or filing with, or notification to, any Governmental Authority or other Person is required on the part of SPAC or Merger Sub 1 with respect to SPAC’s or Merger Sub 1’s execution or delivery of this Agreement or the consummation by SPAC or Merger Sub 1 of the Transactions, except for: (i) applicable requirements of the HSR Act or any similar requirements under applicable foreign Laws or any other Governmental Approvals applicable to the Transactions; (ii) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not, individually or in the aggregate, reasonably be expected to (A) have a SPAC Material Adverse Effect or (B) a material adverse effect on the ability of SPAC or Merger Sub 1 to perform or comply with on a timely basis any material obligation of SPAC or Merger Sub 1 under this Agreement, the Ancillary Agreements or to consummate the Transactions; (iii) in connection with the SPAC Merger, the applicable requirements and required approval of the Cayman Registrar; (iv) applicable requirements for securities Laws; and (v) such Governmental Authorizations listed in Section 5.8 of the SPAC Disclosure Letter.

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Section 5.9         Trust Account. As of the date of this Agreement, SPAC has at least $525,000,000 in the Trust Account (including an aggregate of approximately $12,950,000 of deferred underwriting commissions being held in the Trust Account). The Trust Agreement is valid and in full force and effect and enforceable in accordance with its terms and has not been amended or modified. There are no separate Contracts, side letters or other arrangements or understandings (whether written or unwritten, express or implied) that would cause the description of the Trust Agreement in the SPAC SEC Filings to be inaccurate or that would entitle any Person (other than (a) shareholders of SPAC holding shares of SPAC Common Stock sold in SPAC’s IPO who shall have elected to redeem their shares of SPAC Common Stock pursuant to SPAC Share Redemptions, (b) the underwriters of SPAC’s IPO with respect to deferred underwriting commissions, or (c) if SPAC fails to complete a business combination as contemplated by a Business Combination Proposal within the allotted time period and liquidates the Trust Account, subject to the terms of the Trust Agreement, SPAC (in limited amounts to permit SPAC to pay the expenses of the Trust Account’s liquidation and dissolution) and then to the shareholders of SPAC holding shares of SPAC Common Stock) to any portion of the proceeds in the Trust Account. Prior to the Closing, none of the funds held in the Trust Account may be released other than to pay Taxes and payments with respect to SPAC Share Redemptions in accordance with SPAC’s Organizational Documents and the Trust Agreement. As of the date hereof, there are no claims or proceedings pending or, to the Knowledge of SPAC, threatened in writing with respect to the Trust Account. SPAC has complied in all material respects with, and is not in material default or material breach (claimed or actual) in connection with, the Trust Agreement, and, to the Knowledge of SPAC, no event has occurred which, with due notice or lapse of time or both, would constitute such a material default or material breach thereunder. Since July 22, 2020, SPAC has not released any money from the Trust Account except as permitted pursuant to the Trust Agreement and the SPAC Organizational Documents. To the Knowledge of SPAC, as of the date hereof, following the Effective Time, no SPAC Shareholder shall be entitled to receive any amount from the Trust Account except to the extent such SPAC Shareholder is exercising a SPAC Share Redemption. As of the date hereof, assuming the accuracy of the representations and warranties of the Target Companies contained herein and the compliance by the Target Companies with its obligations hereunder, SPAC has no reason to believe that any of the conditions to the use of funds in the Trust Account will not be satisfied or funds available in the Trust Account will not be available to SPAC on the Closing Date.

Section 5.10       Investment Company Act; JOBS Act. SPAC is not an “investment company” or a Person directly or indirectly “controlled” by or acting on behalf of an “investment company,” in each case within the meaning of the Investment Company Act. SPAC constitutes an “emerging growth company” within the meaning of the JOBS Act.

Section 5.11      Absence of Changes. From the date of the most recent balance sheet included in the SPAC Financial Statements to the date of this Agreement, there has not occurred any SPAC Material Adverse Effect.

Section 5.12      Anti-Corruption Compliance.

(a)            Since formation, SPAC, Merger Sub 1, or, to the Knowledge of SPAC, any director, officer, employee or agent acting on behalf thereof, has not offered, promised, or given, directly or indirectly, anything of value in any material amount to a Government Official.

(b)            Since formation, SPAC, Merger Sub 1, and, to the Knowledge of SPAC, any director, officer, employee or agent acting on behalf thereof, are and have been in compliance with all Anti-Corruption Laws, except as such violation would not have a SPAC Material Adverse Effect.

(c)            SPAC and Merger Sub 1 have instituted and maintain policies and procedures reasonably designed to ensure compliance in all material respects with all Anti-Corruption Laws.

(d)            To the Knowledge of SPAC, as of the date hereof, there are no current or pending internal investigations, third-party investigations (including by any Governmental Authority), or internal or external audits that address any material allegations or information concerning possible material violations of any Anti-Corruption Laws related to SPAC or Merger Sub 1.

Section 5.13       No Undisclosed Liabilities. Neither SPAC nor Merger Sub 1 has any liabilities or obligations that would be required to be reflected or reserved against in the SPAC Financial Statements prepared in accordance with GAAP, except for those liabilities or obligations (a) reflected or reserved for on the SPAC Financial Statements or disclosed in the notes thereto included in the SPAC SEC Filings, (b) that have arisen since the date of the most recent balance sheet included in the SPAC Financial Statements in the ordinary course of business, (c) that will be discharged or paid off prior to or at the Closing, (d) incurred in connection with the negotiation, preparation or execution of this Agreement or any Ancillary Agreements or the consummation of the Transactions, (e) arising under the terms of any Contract binding upon SPAC or Merger Sub 1 (for the avoidance of doubt other than as a result of a breach thereof), or (f) which would not have a SPAC Material Adverse Effect.

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Section 5.14      Capitalization of SPAC.

(a)            As of the date of this Agreement, the total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which SPAC is authorized to issue is 540,000,000 shares, consisting of (i) 440,000,000 shares of SPAC Common Stock, including 400,000,000 shares of SPAC Class A Common Stock, of which 52,500,000 are issued and outstanding, and 40,000,000 shares of SPAC Class B Common Stock, of which 13,125,000 are issued and outstanding, and (ii) 1,000,000 SPAC preference shares, of which no shares are issued and outstanding (clauses (i) to (ii)  collectively, the “SPAC Securities”). The foregoing represents all of the issued and outstanding SPAC Securities as of the date of this Agreement. All issued and outstanding SPAC Securities: (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance in all material respects with applicable Law, including federal and state securities Laws, and all applicable requirements set forth in (A) SPAC’s Organizational Documents, and (B) any other applicable material Contract governing the issuance of such securities; and (iii) are not subject to any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, SPAC’s Organizational Documents or any material Contract to which SPAC is a party or otherwise bound.

(b)            As of the date of this Agreement, 17,500,000 SPAC Public $11.50 Warrants and 6,266,667 SPAC Private $11.50 Warrants are issued and outstanding. SPAC Warrants are not exercisable until 30 days after the Closing. All outstanding SPAC Warrants (i) have been duly authorized and validly issued and constitute valid and binding obligations of SPAC, enforceable against SPAC in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity; (ii) have been offered, sold and issued in compliance with applicable Law, including federal and state securities Laws, and all requirements set forth in (1) SPAC’s Organizational Documents and (2) any other applicable Contracts governing the issuance of such securities; and (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of any applicable Law, SPAC’s Organizational Documents or any Contract to which SPAC is a party or otherwise bound. Except for the Subscription Agreements, SPAC’s Organizational Documents and this Agreement, there are no outstanding Contracts of SPAC to repurchase, redeem or otherwise acquire any SPAC Securities.

(c)            Except as set forth in this Section 5.14 or as contemplated by this Agreement or the other documents contemplated hereby, SPAC has not granted any outstanding options, stock appreciation rights, warrants, rights or other securities convertible into or exchangeable or exercisable for SPAC Securities, or any other commitments or agreements providing for the issuance of additional shares, the sale of treasury shares, for the repurchase or redemption of any SPAC Securities or the value of which is determined by reference to SPAC Securities, and there are no Contracts of any kind which may obligate SPAC to issue, purchase, redeem or otherwise acquire any of its SPAC Securities.

(d)            SPAC has no Subsidiaries, apart from Merger Sub 1, and does not own, directly or indirectly, any equity interests or other interests or investments (whether equity or debt) in any Person, whether incorporated or unincorporated. SPAC is not party to any Contract that obligates SPAC to invest money in, loan money to or make any capital contribution to any other Person. SPAC owns of record and beneficially all the issued and outstanding shares of capital stock of Merger Sub 1, free and clear of any Liens. The outstanding shares of capital stock of Merger Sub 1 (i) have been duly authorized and validly issued, and, to the extent applicable, are fully paid and non-assessable; and (ii) have been issued in compliance with the Organizational Documents of Merger Sub 1 and applicable Law. There are no outstanding subscriptions, options, warrants, rights or other securities (including debt securities) exercisable or exchangeable for any capital stock Merger Sub 1, any other commitments, calls, conversion rights, rights of exchange or privilege (whether pre-emptive, contractual or by matter of Law), plans or other agreements of any character providing for the issuance of additional shares, the sale of treasury shares or other equity interests, or for the repurchase or redemption of shares or other equity interests of Merger Sub 1 or the value of which is determined by reference to shares or other equity interests of Merger Sub 1, and there are no voting trusts, proxies or agreements of any kind which may obligate Merger Sub 1 to issue, purchase, register for sale, redeem or otherwise acquire any of its capital stock.

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Section 5.15       Brokers’ Fees. Except fees described on Section 5.15 of the SPAC Disclosure Letter, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the Transactions based upon arrangements made by SPAC or any of its Affiliates for which SPAC or any Target Company or any of their respective Subsidiaries has any obligation. SPAC has made available to Epic correct and complete copies of all engagement letters, Contracts or similar agreements with any broker, finder, investment banker, agent or other Person related to any fee or commission that would be included in SPAC Transaction Expenses.

Section 5.16       Indebtedness. SPAC has no Indebtedness other than the SPAC Convertible Notes.

Section 5.17       Taxes.

(a)            All material Tax Returns required to be filed by or with respect to SPAC or Merger Sub 1 have been timely filed (taking into account any applicable extensions) with the appropriate Governmental Authority and all such Tax Returns are true, correct and complete in all material respects, and all material Taxes of SPAC or Merger Sub 1 due and payable for periods covered by the SPAC Financial Statements (whether or not shown on any Tax Return) have been fully and timely paid (taking into account any applicable extensions), other than Taxes being contested in good faith and for which adequate reserves have been established in the SPAC Financial Statements in accordance with GAAP.

(b)            Each of SPAC and Merger Sub 1 has withheld from amounts owing to any employee, creditor or other Person all material Taxes required by Law to be withheld, paid over to the proper Governmental Authority in a timely manner all such withheld amounts required to have been so paid over and complied in all material respects with all applicable withholding and related reporting requirements with respect to such Taxes required to be withheld.

(c)            There are no Liens (other than Permitted Liens) for material Taxes upon the property or assets of SPAC or Merger Sub 1.

(d)            To the Knowledge of SPAC or Merger Sub 1, no written claim, assessment, deficiency or proposed adjustment for any material amount of Tax due or payable by SPAC or Merger Sub 1 has been asserted or assessed within the past two years by any Governmental Authority against SPAC or Merger Sub 1 that remains unresolved or unpaid except for claims, assessments, deficiencies or proposed adjustments being contested in good faith and for which adequate reserves have been established in the SPAC Financial Statements in accordance with GAAP.

(e)            There are no ongoing or pending Legal Proceedings against SPAC or Merger Sub 1 with respect to any material Taxes due or payable and there are no waivers, extensions or requests for any waivers or extensions of any statute of limitations currently in effect with respect to any material Taxes of SPAC or Merger Sub 1 that are due or payable (other than ordinary course extensions of time to file Tax Returns).

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(f)            No written claim has been made by any Governmental Authority where SPAC or Merger Sub 1 does not file Tax Returns that it is or may be subject to taxation in that jurisdiction.

(g)            Neither SPAC nor Merger Sub 1 is a party to any Tax indemnification or Tax sharing or similar agreement (other than any such agreement solely between SPAC and Merger Sub 1 and customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).

(h)            Neither SPAC nor Merger Sub 1 has been a party to any transaction treated by the parties as a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the two years prior to the date of this Agreement.

(i)            Neither SPAC nor Merger Sub 1 is liable for Taxes of any other Person (other than SPAC or Merger Sub 1) under Treasury Regulation Section 1.1502-6 or any similar provision of state, local or foreign Tax Law or as a transferee or successor or by Contract (other than customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes).

(j)            Neither SPAC nor Merger Sub 1 has participated in a “listed transaction” within the meaning of Section 6707A(c)(2) of the Code and Treasury Regulation Section 1.6011-4(b)(2).

(k)            Neither SPAC nor Merger Sub 1 has knowingly taken or caused to be taken, or knowingly failed to take or cause to be taken, any action, and to the Knowledge of SPAC and Merger Sub 1, as of the date hereof, there are no facts or circumstances, that could reasonably be expected to prevent (i) the SPAC Merger from qualifying for the SPAC Merger Intended Tax Treatment, (ii) the Sponsor Exchange from qualifying for Exchange Intended Tax Treatment, or (iii) the Company Merger and the PIPE Investment from qualifying for the Company Merger Intended Tax Treatment.

(l)            Neither SPAC nor Merger Sub 1 will be required to include any material item of income in, or exclude any material item or deduction from, taxable income for any taxable period beginning after the Closing Date or, in the case of any taxable period beginning on or before and ending after the Closing Date, the portion of such period beginning after the Closing Date, as a result of: (i) an installment sale or open transaction disposition that occurred on or prior to the Closing Date other than in the ordinary course of business; (ii) any change in method of accounting on or prior to the Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Law); (iii) any prepaid amount received or deferred revenue recognized on or prior to the Closing Date; (iv) any intercompany transaction described in Treasury Regulations under Section 1502 (or any corresponding or similar provision of state or local Laws); (v) any closing agreement pursuant to Section 7121 of the Code or any similar provision of state, local or foreign Law or (vi) a “domestic use election” under Section 1503(d) of the Code or a “gain recognition agreement” under Treasury Regulations Section 1.367(a)-8.

Notwithstanding anything to the contrary contained herein, none of the representations or warranties contained elsewhere in Article V shall relate to Tax matters, which are instead the subject of Section 5.9 and this Section 5.17 exclusively.

Section 5.18      Business Activities.

(a)            Since formation, neither SPAC nor Merger Sub 1 has conducted any business activities other than activities related to SPAC’s IPO or directed toward the accomplishment of a Business Combination. Except as set forth in SPAC’s Organizational Documents or as otherwise contemplated by this Agreement or the Ancillary Agreements and the Transactions, there is no agreement, commitment, or Governmental Order binding upon SPAC or Merger Sub 1 or to which SPAC or Merger Sub 1 is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of SPAC or Merger Sub 1 or any acquisition of property by SPAC or Merger Sub 1 or the conduct of business by SPAC or Merger Sub 1 as currently conducted or as contemplated to be conducted as of the Closing, other than such effects, individually or in the aggregate, which have not been and would not reasonably be expected to be material to SPAC or Merger Sub 1 taken as a whole.

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(b)           Except for the Transactions, neither SPAC nor Merger Sub 1 owns or has a right to acquire, directly or indirectly, any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, business, trust or other entity. Except for this Agreement and the Ancillary Agreements and the Transactions, neither SPAC nor Merger Sub 1 has any material interests, rights, obligations or liabilities with respect to, and is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or would reasonably be interpreted as constituting, a Business Combination.

(c)           Merger Sub 1 was formed solely for the purpose of effecting the Transactions and has not engaged in any business activities or conducted any operations other than in connection with the Transactions and has no, and at all times prior to the Effective Time, except as expressly contemplated by this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby, will have no, assets, liabilities or obligations of any kind or nature whatsoever other than those incident to its formation or that arise in connection with the Transactions.

(d)           As of the date hereof and except for this Agreement, the Ancillary Agreements and Transactions (including with respect to expenses and fees incurred in connection therewith), neither SPAC nor Merger Sub 1 is a party to any Contract with any other Person that would require payments by SPAC or Merger Sub 1 or any of their respective Affiliates after the date hereof in excess of $200,000 in the aggregate with respect to any individual Contract.

Section 5.19      Employee Matters. Each of SPAC and Merger Sub 1 does not have and has never had any employees or other individual service providers, and each of SPAC and Merger Sub 1 does not and has never sponsored, maintained, contributed to or had any liability in respect of any Benefit Plan. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby will: (a) result in any payment (including severance, unemployment compensation, golden parachute, bonus or otherwise) becoming due to any director, officer, individual independent contractor, or employee of SPAC or Merger Sub 1; or (b) result in the acceleration of the time of payment or vesting of any compensation or benefits.

Section 5.20      Stock Market Quotation. As of the date hereof, SPAC Class A Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is listed for trading on the NYSE under the symbol “HZON.” The SPAC Units are listed on the NYSE under the symbol “HZON.U” As of the date hereof, SPAC Public $11.50 Warrants are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the NYSE under the symbol “HZON.WS.” As of the date hereof, there is no Action pending or, to the Knowledge of SPAC, threatened against SPAC by the NYSE or the SEC with respect to any intention by such entity to deregister SPAC Class A Common Stock, SPAC Units or SPAC Warrants or terminate the listing of SPAC Class A Common Stock, SPAC Units or SPAC Warrants on the NYSE, and none of SPAC or its Affiliates has taken any action in an attempt to terminate the registration of SPAC Class A Common Stock, SPAC Units or SPAC Warrants under the Exchange Act except as contemplated by this Agreement.

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Section 5.21      No Reliance. Notwithstanding anything contained in this Article V or any other provision hereof, each of SPAC and Merger Sub 1, and any of their respective Representatives, acknowledges and agrees that SPAC has made its own investigation of each of the Target Companies and each of their respective Subsidiaries and that none of the Target Companies nor any of their respective Affiliates or Representatives is making, and each of SPAC and Merger Sub 1 specifically disclaim that they or any other Person is relying upon or has relied upon, any representation or warranty whatsoever, express or implied, beyond those expressly given by the Target Companies in Article IV, including any implied warranty or representation as to condition, merchantability, fitness for a particular purpose, future results, proposed businesses or future plans of the Target Companies. Without limiting the generality of the foregoing, it is understood that any cost estimates, financial or other projections or other predictions that may be contained or referred to in the Epic Disclosure Letter or elsewhere, as well as any information, documents or other materials (including any such materials contained in any “data room” (whether or not accessed by SPAC or its Representatives) or reviewed by SPAC pursuant to the Confidentiality Agreement) or management presentations that have been or shall hereafter be provided to SPAC or any of its Affiliates or Representatives are not and will not be deemed to be representations or warranties of the Target Companies, and no representation or warranty is made as to the accuracy or completeness of any of the foregoing except as may be expressly set forth in Article IV of this Agreement. Except as otherwise expressly set forth in this Agreement, SPAC understands and agrees that any assets, properties and business of the Target Companies and their respective Subsidiaries are furnished “as is,” “where is” and subject to and except as otherwise provided in the representations and warranties contained in Article IV, with all faults and without any other representation or warranty of any nature whatsoever.

Section 5.22      Registration Statement and Proxy Statement/Prospectus. None of the information relating to SPAC or its Affiliates supplied by SPAC or its Affiliates in writing for inclusion in the Proxy Statement/Prospectus or Registration Statement will, as of the effective date of the Registration Statement, as of the date the Proxy Statement/Prospectus is mailed to the SPAC Shareholders, and in the case of any amendment or supplement thereto, as of the time of such amendment or supplement, and at the time of the SPAC Shareholders’ Meeting, or at the SPAC Merger Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that SPAC makes no representations or warranties as to any information supplied by or on behalf of the Target Companies or their respective Subsidiaries.

Section 5.23      No Additional Representation or Warranties. Except as provided in this Article V, neither SPAC nor Merger Sub 1 nor any of their respective Affiliates, nor any of their respective Representatives has made, or is making, any representation or warranty whatsoever, express or implied, at law or in equity, to any Target Company or their respective Affiliates or any other Person, including any implied representation or warranty as to merchantability, fitness for a particular purpose, future results, proposed businesses or future plans of SPAC, and no such party shall be liable in respect of the accuracy or completeness of any information provided to any Target Company or their respective Affiliates, including information, documents, projections, forecasts or other material made available to the Target Companies or their respective or Representatives in any “data rooms,” management presentations or otherwise in connection with the transactions contemplated in this Agreement and the Ancillary Agreements and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise or deemed to be relied upon by any Party in executing, delivering or performing this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby. Except for the representations and warranties expressly set forth in this Article V or the Ancillary Agreements, it is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering materials or presentations, including any offering memorandum or similar materials made available by or on behalf of SPAC are not and shall not be deemed to be or to include representations or warranties of SPAC or Merger Sub 1 or any other Person, and are not and shall not be deemed to be relied upon by any Party in executing, delivering or performing this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby.

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Article VI
COVENANTS OF THE TARGET COMPANIES

Section 6.1         Conduct of Business of Epic and its Subsidiaries. From the date of this Agreement through the earlier of the Closing and valid termination of this Agreement pursuant to Article X (the “Interim Period”), except (w) as expressly contemplated by this Agreement, Section 6.1 of the Epic Disclosure Letter or the Ancillary Agreements, (x) as required to effectuate the Pre-Closing Reorganization (in accordance with the terms of this Agreement), (y) as required by Law or Governmental Order (including for this purpose, any COVID-19 Measure), or for COVID-19 Actions or (z) as consented to by SPAC in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied), (A) Epic shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to operate the business of Epic and its Subsidiaries in the ordinary course of business; provided, that none of the foregoing provisions shall prevent Epic or any of its Subsidiaries from taking or omitting to take any action to prevent or mitigate the effects of any damage to property or injury to, or to protect the health or welfare of, employees, directors, officers or agents in emergency situations, and (B) Epic shall not, and shall cause its Subsidiaries not to:

(a)            change, modify or amend its Organizational Documents;

(b)            make, set aside, or declare any dividend or distribution to the equityholders of Epic or any such Subsidiaries or make any other distributions in respect of any shares or other equity interests of Epic or any such Subsidiaries;

(c)            split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of Epic’s or any such Subsidiaries’ capital stock or equity interests;

(d)            purchase, repurchase, redeem or otherwise acquire, directly or indirectly, any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of Epic or any such Subsidiaries;

(e)            enter into any Contract (for the avoidance of doubt, not including (x) any Contracts that will be entered into by Epic or its Subsidiaries in connection with the Pre-Closing Acquisition or (y) any Contracts of the Pre-Closing Acquisition Target (as defined in Schedule 1.1) or its Subsidiaries that become Contracts of Epic or its Subsidiaries at the time of the consummation of the Pre-Closing Acquisition by virtue of the Pre-Closing Acquisition) that would be required to be listed on Section 4.12(a) of the Epic Disclosure Letter, or modify in any material respect, renew, waive any material rights under or terminate (other than expiration in accordance with its terms) any Contract required to be listed on Section 4.12(a) of the Epic Disclosure Letter, in each case, other than as required by applicable Law;

(f)            sell, assign, transfer, convey, lease or otherwise dispose of, or create or incur any Lien (other than Permitted Liens) on, any material tangible assets or properties of Epic or any such Subsidiaries, except for (i) dispositions of obsolete or worthless equipment, (ii) transactions solely among Epic and any such Subsidiaries or among such Subsidiaries, or (iii) transactions in the ordinary course of business (including, for the avoidance of doubt, the purchase of aircraft);

(g)            issue, deliver, sell, authorize, pledge, amend, exchange, settle or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests, or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, in each case, of Epic or any of its Subsidiaries;

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(h)            acquire any ownership interest in any real property;

(i)            acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the equity interests in or assets of, or form or enter into, as applicable, any corporation, partnership, association, joint venture or other business organization or division thereof;

(j)            except as otherwise required by Law or existing Epic Benefit Plans, or pursuant to this Agreement (i) grant any severance, retention, change in control or termination or similar pay, (ii) terminate, adopt, enter into or amend or grant any new awards under any Epic Benefit Plan, (iii) increase the cash compensation or bonus opportunity of any officer or director, (iv) take any action to amend or waive any performance or vesting criteria or to accelerate the time of payment or vesting of any compensation or benefit payable by Epic or any Subsidiaries, (v) terminate the employment or engagement, other than for cause, death or disability, of any key employee, individual consultant or individual independent contractor, in each case, with an annual or annualized base compensation in excess of $400,000, (vi) hire any key employee with annual or annualized base compensation in excess of $500,000, (vii) plan, announce, implement, or effect the reduction in force, lay-off, furloughs, early-retirement program, severance program or other program or effort concerning the termination of a group of employees of Epic or any such Subsidiaries, (viii) establish, adopt, terminate or, except in the ordinary course and consistent with past practice, materially amend or modify any Epic Benefit Plan or (ix) take any action that would trigger any notice requirement under the WARN Act;

(k)            incur or assume any Indebtedness for borrowed money, or guarantee any Indebtedness for borrowed money of another Person, except (i) as set forth on Section 6.1(k) of the Epic Disclosure Letter, intercompany Indebtedness for borrowed money or guarantee solely between Epic and its Subsidiaries, or (ii) for any Indebtedness for borrowed money or guarantee in an aggregate amount not to exceed $100,000,000;

(l)            make or commit to make any capital expenditures in an amount in excess of $25,000,000 in the aggregate, excluding purchases of aircraft in the ordinary course of business and expenditures related to the construction of the Target Companies’ headquarter facilities;

(m)           (i) make or change any material election in respect of material Taxes of Epic or any such Subsidiaries, (ii) materially amend, modify or otherwise change any material Tax Return filed by or with respect to Epic or any such Subsidiaries, (iii) enter into any closing agreement in respect of material Taxes of Epic or any such Subsidiaries or enter into any Tax indemnity, Tax sharing or Tax allocation or similar agreement in respect of material Taxes (other than any customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes), (iv) surrender any right to claim a material refund of Taxes, (v) consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, or (vi) settle any claim or assessment in respect of material Taxes of Epic or any such Subsidiaries, except, in each case, in the ordinary course of business;

(n)            knowingly take or cause to be taken, or knowingly fail to take or cause to be taken, any action, where such action or failure to act could reasonably be expected to prevent the Company Merger from qualifying for the Company Merger Intended Tax Treatment;

(o)           except as required by Law or GAAP, make any material changes to its accounting methods, principles or practices;

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(p)           adopt a plan of, or otherwise enter into or effect a, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Epic or any such Subsidiaries;

(q)            waive, release, settle, compromise or otherwise resolve any Legal Proceeding material to Epic or any such Subsidiary or to their respective properties or assets, except where such waivers, releases, settlements, compromises or resolutions involve only the payment of monetary damages in an amount less than $1,000,000 in the aggregate;

(r)            grant to, or agree to grant to, any Person rights to any material Epic Owned IP (other than non-exclusive licenses or licenses granted in the ordinary course of business), or dispose of, abandon or permit to lapse any rights to any Epic Registered Intellectual Property, other than with respect to Epic Registered Intellectual Property whose cost of prosecution or maintenance, in the reasonable exercise of Epic’s business judgement, would outweigh any benefit to Epic of prosecution or maintaining such item;

(s)            disclose any material Trade Secrets to a third party that is not subject to confidentiality obligations that are reasonably protective of such Trade Secrets;

(t)            enter into or amend any Collective Bargaining Agreement covering any Epic Employee, other than as required by applicable Law, or recognize or certify any Labor Organization, or group of employees of Epic or any such Subsidiaries as the bargaining representative for any Epic Employee;

(u)            limit the right of Epic or any such Subsidiaries to engage in or compete with any Person in any line of business in any respect that is material to their respective businesses (either by entry of Contract or otherwise);

(v)           voluntarily fail to take any action required to preserve or obtain any material License of Epic or any such Subsidiaries;

(w)           enter into any material transaction with or distribute or advance any material assets or material property to any of its officers, directors, partners, stockholders, managers, members or other Affiliates other than (i) the payment of salary and benefits and the advancement of expenses in the ordinary course of business, or (ii) such transactions, distributions or advancements solely among Epic and its Subsidiaries (including between one Subsidiary and another Subsidiary); or

(x)            authorize, commit or agree to take, whether in writing or otherwise, any action prohibited under this Section 6.1.

Section 6.2         Conduct of Business of Flexjet, the Company and Merger Sub 2. During the Interim Period, the Company, and prior to the SPAC Merger Effective Time (unless this Agreement is earlier terminated pursuant to Article X), Flexjet and Merger Sub 2, shall not take any actions, engage in any business activities or conduct any operations except (w) as expressly contemplated by this Agreement or the Ancillary Agreements, (x) as required to effectuate the Pre-Closing Reorganization in accordance with the terms of this Agreement, (y) as required by Law or Governmental Order (including for this purpose, any COVID-19 Measure), or for COVID-19 Actions or (z) as consented to by SPAC in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied).

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Section 6.3         Access to Information. Subject to confidentiality obligations (whether contractual or imposed by applicable Law or otherwise) that may be applicable to information furnished to any of the Target Companies or any of their respective Subsidiaries by third parties that may be in any of the Target Companies or any of their respective Subsidiaries’ possession from time to time, and except for any information that is subject to attorney-client privilege or other privilege (provided, that, to the extent possible, the parties shall cooperate in good faith to permit disclosure of such information in a manner that preserves such privilege or compliance with such confidentiality obligation), and to the extent permitted by applicable Law, the Target Companies shall, and shall cause their respective Subsidiaries to, afford to SPAC and its Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance written notice, in such manner as to not materially interfere with the ordinary course of business of the Target Companies and their Subsidiaries, to its properties, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees, and shall furnish SPAC or such Representatives with all financial and operating data and other information concerning the affairs of the Target Companies or their Subsidiaries as SPAC or such Representatives may reasonably request; provided, however, that such access shall not include (a) any unreasonably invasive or intrusive investigations or other testing, sampling or analysis of any properties, facilities or equipment of any of the Target Companies or any of their Subsidiaries without the prior written consent of Epic, (b) any information which in the opinion of legal counsel of Epic would result in the loss of attorney-client privilege or other privilege, or (c) any information that, in Epic’s reasonable determination, is competitively sensitive (provided that in such case such reasonably requested information shall be made available pursuant to mutually agreed “clean team” procedures, to the extent permissible under applicable Law). Each of SPAC and Merger Sub 1 acknowledges and agrees that any contact or communication by it and its Representatives with officers, employees or agents of any of the Target Companies or any of their Subsidiaries hereunder shall be arranged and supervised by Representatives of the Target Companies granting access, unless Epic and the Company otherwise expressly consents in writing with respect to any specific contact. During the Interim Period, all information obtained by SPAC or Merger Sub 1 or any of their respective Representatives in connection with this Agreement (including pursuant to this Section 6.3) shall remain subject to the Confidentiality Agreement. Notwithstanding anything to the contrary in the Confidentiality Agreement, the Confidentiality Agreement shall remain in full force and effect in accordance with its terms (but subject to the preceding sentence) until the Closing Date or, if for any reason this Agreement is terminated prior to the Closing pursuant to Section 10.1, until the date that is two years after such termination.

Section 6.4         Preparation and Delivery of Additional Epic Financial Statements; Access to Financial Information.

(a)            As soon as reasonably practicable following the date of this Agreement, the Target Companies shall deliver to SPAC (i) the Epic Financial Statements, (ii) the unaudited consolidated balance sheets and statements of operations, comprehensive loss, stockholders’ equity and cash flows of Epic and its Subsidiaries as of and for the nine-month period ending September 30, 2022 and (iii) the audited consolidated balance sheets and statements of operations, comprehensive loss, stockholders’ equity, and cash flows of Epic and its Subsidiaries for the twelve-month period ended December 31, 2022 (the financial statements delivered in clauses (i)-(iii), the “Updated Financial Statements”), and, when delivered by the Target Companies, the Updated Financial Statements, (w) will present fairly, in all material respects, the state and the consolidated financial position of Epic and its Subsidiaries as at the dates thereof and the consolidated results of their operations, their consolidated incomes, their consolidated changes in stockholders’ equity and their consolidated cash flows for the respective periods then ended, (x) will be prepared from, and will be in accordance in all material respects with, the books and records of Epic and its Subsidiaries, (y) will be prepared in conformity with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto), and (z) in the case of audited financial statements, will be audited in accordance with the standards of the Public Company Accounting Oversight Board, and, in each case, will comply in all material respects with the applicable accounting requirements and with the rules and regulations of the SEC (including, for the avoidance of doubt, in accordance with any relief granted by the SEC to the Target Companies or their respective auditors), the Exchange Act and the Securities Act applicable as required for inclusion of the Updated Financial Statements into the Form S-4.

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(b)            During the Interim Period, the Target Companies shall, and shall cause their respective Subsidiaries to, use commercially reasonable efforts (i) to assist SPAC and its Representatives, upon advance written notice, during normal business hours and in a manner such as to not unreasonably interfere with the normal operation of the Target Companies or applicable Subsidiary, in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that is reasonably required to be included in the Registration Statement / Proxy Statement and any other filings to be made by SPAC and Flexjet with the SEC in connection with the transactions contemplated by this Agreement and the Ancillary Agreements and (ii) to obtain the consents of the Target Companies’ auditors with respect thereto as may be required by applicable Law.

Section 6.5      Acquisition Proposals. From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, other than as contemplated by this Agreement, any of the Ancillary Agreements or the Transactions (including the PIPE Investment or the Pre-Closing Reorganization), the Target Companies and their respective Subsidiaries shall not, and each Target Company shall instruct its respective Representatives not to, (a) make any proposal or offer that constitutes an Alternative Proposal, (b) initiate, solicit or engage in any negotiations with any Person with respect to, or provide any non-public information or data concerning any Target Company or any of its Subsidiaries to any Person relating to, an Alternative Proposal or afford to any Person access to the business, properties, assets or personnel of any Target Company or any of its Subsidiaries in connection with an Alternative Proposal, (c) enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement, relating to an Alternative Proposal, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Alternative Proposal, (e) approve, endorse or recommend, or propose to approve, endorse or recommend, an Alternative Proposal, or (f) agree or otherwise commit to enter into or engage in any of the foregoing, in each case, other than with SPAC, Merger Sub 1 or any of their respective Representatives or, following the SPAC Merger Effective Time, Flexjet or its Representatives. From and after the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, the Target Companies and their respective Subsidiaries shall, and shall instruct their respective Representatives to, immediately cease and terminate all discussions and negotiations with any Persons that may be ongoing with respect to an Alternative Proposal (other than SPAC, Merger Sub 1, or any of their respective Representatives or, following the SPAC Merger, Flexjet). From and after the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, each Target Company will promptly, and in any event within two Business Days of receipt, notify SPAC if it or any of its controlled Affiliates, or, to the Knowledge of Epic, any of its or its (i) non-controlled Affiliates or (ii) Affiliates’ respective Representatives, receives any proposal, offer or submission with respect to an Alternative Proposal after the date of this Agreement.

Section 6.6      Pre-Closing Reorganization. Prior to the SPAC Merger Effective Time, the Target Companies shall use commercially reasonable efforts to consummate the transactions contemplated by the Pre-Closing Reorganization described on Schedule 1.1 with such changes (a) that are determined by the Target Companies to be reasonably necessary to effect such transactions (provided, however that if the Pre-Closing Management Grants are not issued prior to the Closing, then the Pre-Closing Management Grants shall not be issued at any time thereafter) and (b) solely in the case of any such change that would reasonably be expected to adversely affect the Intended Tax Treatment to SPAC or SPAC’s shareholders, that are subject to SPAC’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). The Target Companies shall keep SPAC reasonably informed regarding the status of the Pre-Closing Reorganization and shall provide to SPAC copies of any material, definitive written documentation proposed to be entered into by the Target Companies (including a Tax matters agreement or similar agreement related to a Pre-Closing Divestiture (as defined on Schedule 1.1) structured as a distribution of stock or limited liability company interests) or request for any Tax ruling in connection with the Pre-Closing Reorganization reasonably in advance of entering into such material, definitive written documentation or requesting such Tax ruling, and consider in good faith any reasonable comments thereon provided by SPAC or its Representatives reasonably in advance of the entering into of such material, definitive written documentation or the requesting of such Tax ruling. Notwithstanding anything to the contrary in this Agreement, no Target Company shall enter into any material, definitive written documentation in connection with the Pre-Closing Reorganization that (i) constitutes a ruling request from a Tax authority, (ii) limits the right of any Target Company to engage in or compete with any Person in any line of business in any respect that is material to such Target Company’s business, (iii) involves post-Closing payment obligations on any Target Company or any of their respective Subsidiaries (including any earn-out or indemnification obligations) in excess of $10,000,000, but excluding any Taxes (or an indemnification obligation in respect of Taxes) arising out of any transaction entered into in connection with the Pre-Closing Reorganization, or (iv) includes a release of any claims by any Target Company or any of their respective Subsidiaries other than releases that involve only the payment of monetary damages in an amount less than $1,000,000 in the aggregate, in each case, without the prior written consent of SPAC (such consent not to be unreasonably withheld, conditioned or delayed), except, with respect to each of clauses (ii) through (iv) above, to the extent such limitation, obligation, or release is customarily entered into in connection with a distribution of stock qualifying for tax-free treatment under Section 355 of the Code; provided, further, that SPAC shall be deemed to have a reasonable basis for withholding its consent to a request for a Tax ruling described in clause (i) to the extent such request would be expected, in SPAC’s reasonable determination, to cause more than a de minimis delay in the closing of the Transactions described herein. Upon SPAC’s request, the Target Companies shall as soon as reasonably practicable deliver to SPAC executed copies of any material, definitive written documentation entered into by the Target Companies or any of their respective Subsidiaries or Tax ruling obtained in connection with the Pre-Closing Reorganization.

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Section 6.7      No Securities Transactions. Except for actions expressly required by this Agreement (including those taken in connection with the Pre-Closing Reorganization or the other Transactions), no Target Company nor any of their respective controlled Affiliates, directly or indirectly, shall engage in any purchases or sales of the securities of SPAC (prior to the SPAC Merger Effective Time) or Flexjet (prior to the Company Merger Effective Time), in each case, without the consent of SPAC or Flexjet, as applicable.

Section 6.8      Target Company Approvals. Each of the Company and Merger Sub 2 shall, as promptly as practicable after the SEC Approval Date, give notice, duly call and convene, in accordance with the applicable provisions of the DGCL or DLLCA, as applicable, and its Organizational Documents, a special meeting of its respective stockholders or members, as applicable, to consider and vote upon this Agreement and the Mergers and the other Transactions, and shall hold such meeting as promptly as practicable after such notice is given (each, a “Target Company Securityholder Meeting”), and in connection therewith, each of the Company and Merger Sub 2 shall timely send copies of the Proxy Statement/Prospectus and all other relevant information and documentation to its respective stockholders or members, as applicable. Each of the Company, Merger Sub 2 and their respective boards of directors or managers, as applicable, shall use commercially reasonable efforts to secure its respective Target Company Securityholder Approval at the applicable Target Company Securityholder Meeting. Notwithstanding any of the foregoing, the Company or Merger Sub 2 may, at its sole election and option, obtain its respective Target Company Securityholder Approval, without a need for calling a Target Company Securityholder Meeting, by obtaining the written consent of its respective stockholders or members, as applicable, representing its respective Target Company Securityholder Approval, which written consent is executed and delivered by such holders after the SEC Approval Date and the Proxy Statement/Prospectus is delivered to its respective stockholders or members, as applicable.

Section 6.9      PIPE Subscriptions. Except for the Eldridge Back-Stop Subscription Agreement, Flexjet shall not enter into or, once entered into, permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or any replacements of, the Subscription Agreements without the prior written consent of SPAC and Epic (such consent not to be unreasonably withheld, conditioned or delayed). Assuming Subscription Agreements are entered into after the date hereof, Flexjet shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate the transactions contemplated by the Subscription Agreements on the terms and conditions described therein, including: (a) using its commercially reasonable efforts to satisfy in all material respects on a timely basis all conditions and covenants applicable to Flexjet in the Subscription Agreements and otherwise comply with its obligations thereunder; (b) in the event that all conditions in the Subscription Agreements (other than conditions that Flexjet or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, consummating the transactions contemplated by the Subscription Agreements at or prior to the Closing; and (c) with respect to enforcing its rights under the Subscription Agreements in the event that all conditions in the Subscription Agreements (other than conditions that Flexjet or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, to cause the applicable PIPE Investors to contribute to Flexjet the applicable portion of the PIPE Investment Amount set forth in the Subscription Agreements at or prior to the Closing. Without limiting the generality of the foregoing, Flexjet shall give SPAC and Epic prompt (and, in any event within five Business Days) written notice: (A) of any breach or default (or any event or circumstance that, with notice, could give rise to any breach or default) by any party to any Subscription Agreement known to Flexjet; (B) of the receipt of any written notice or other communication from any party to any Subscription Agreement with respect to any actual, potential or claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by such party to any Subscription Agreement or any provisions of any Subscription Agreement; and (C) if Flexjet does not expect to receive all or any portion of the PIPE Investment Amount on the terms or in the manner contemplated by the Subscription Agreements.

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Section 6.10      Employee Agreements. The Target Companies shall use commercially reasonable efforts to cause each of the Key Employees to execute and deliver an Employee Agreement at or prior to the Closing.

Section 6.11      Certain Required Actions. As promptly as possible following the date of this Agreement, but in any event prior to the filing of the Registration Statement, the Target Companies shall use commercially reasonable efforts to take such actions as are described on Schedule 6.11 (the “Required Actions”). The Target Companies shall (a) keep SPAC reasonably informed regarding the status of all Required Actions, (b) provide drafts of all related agreements to SPAC, and (c) reasonably consider any reasonable comments provided by SPAC to such agreements.

Article VII
COVENANTS OF SPAC

Section 7.1      Trust Account Proceeds and Related Available Equity. Upon satisfaction or waiver of the conditions set forth in Article IX and following the assignment of the Trust Agreement to Flexjet in accordance with Section 8.15, and upon provision of notice of the satisfaction or waiver of the conditions set forth in Article IX to the Trustee (which notice Flexjet shall provide to the Trustee in accordance with the terms of the Trust Agreement), (a) in accordance with and pursuant to the Trust Agreement, at the Closing, Flexjet (i) shall cause any documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered and (ii) shall use its commercially reasonable efforts to cause the Trustee to, (A) pay as and when due all amounts payable to SPAC Shareholders pursuant to SPAC Share Redemptions, (B) pay the amounts due to the underwriters of SPAC’s IPO for their deferred underwriting commissions as set forth in the Trust Agreement, and (iii) pay all remaining amounts then available in the Trust Account to Flexjet for immediate use, subject to this Agreement and the Trust Agreement, and (b) thereafter, the Trust Account shall terminate, except as otherwise provided therein.

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Section 7.2      No Solicitation by SPAC. From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, each of SPAC and Merger Sub 1 shall not, and shall instruct their respective Representatives not to, (a) make any proposal or offer that constitutes a Business Combination Proposal, (b) initiate, solicit or engage in any negotiations with any Person with respect to, or provide any non-public information or data concerning SPAC to any Person relating to, a Business Combination Proposal or afford to any Person access to the business, properties, assets or personnel of SPAC in connection with a Business Combination Proposal, (c) enter into any acquisition agreement, business combination, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement, relating to a Business Combination Proposal, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make a Business Combination Proposal, (e) approve, endorse or recommend, or propose to approve, endorse or recommend, a Business Combination Proposal, or (f) agree or otherwise commit to enter into or engage in any of the foregoing, in each case, other than with the Target Companies or any of their respective Representatives. From and after the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, each of SPAC and Merger Sub 1 shall, and shall instruct their respective Representatives to, immediately cease and terminate all discussions and negotiations with any Persons that may be ongoing with respect to a Business Combination Proposal (other than the Target Companies or any of their respective Representatives). From and after the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, each of SPAC and Merger Sub 1 will promptly, and in any event within two Business Days of receipt, notify the Target Companies if it or any of its controlled Affiliates, or, to the Knowledge of SPAC, any of its or its (i) non-controlled Affiliates or (ii) Affiliates’ respective Representatives, receives any proposal, offer or submission with respect to a Business Combination Proposal after the date of this Agreement.

Section 7.3      SPAC Conduct of Business.

(a)        During the Interim Period, except (1) as expressly contemplated by this Agreement (including the PIPE Investment, Section 7.3 of the SPAC Disclosure Letter, or the Mergers), or the Ancillary Agreements, (2) as required by Law or Governmental Order (including for this purpose, any COVID-19 Measure), or for COVID-19 Actions, (3) in connection with the extension of the SPAC Business Combination Deadline as expressly contemplated by and described in the definitive proxy statement filed by SPAC on August 26, 2022 (or any supplements, amendments or modifications thereto) or (4) as consented to by Epic and the Company in writing (which consent shall not be unreasonably conditioned, withheld, delayed or denied) (A) SPAC shall, and shall cause Merger Sub 1 to, use commercially reasonable efforts to operate its business in the ordinary course of business; provided, that none of the foregoing provisions shall prevent SPAC or Merger Sub 1 from taking or omitting to take any action to prevent or mitigate the effects of any damage to property or injury to, or to protect the health or welfare of, employees, directors, officers or agents in emergency situations, and (B) SPAC shall not, and shall cause Merger Sub 1 not to:

(i)            change, modify or amend the Trust Agreement or any other agreement related to the Trust Account or the Organizational Documents of SPAC or Merger Sub 1;

(ii)            make, set aside, or declare any dividend or distribution to the equityholders of SPAC or Merger Sub 1 or make any other distributions in respect of any of SPAC’s or Merger Sub 1’s capital stock, share capital or equity interests;

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(iii)            split, combine, reclassify, recapitalize or otherwise amend any terms of any shares or series of SPAC’s or Merger Sub 1’s capital stock or equity interests;

(iv)            purchase, repurchase, redeem or otherwise acquire, directly or indirectly, any issued and outstanding share capital, outstanding shares of capital stock, share capital or membership interests, warrants or other equity interests of SPAC or Merger Sub 1, other than a redemption of shares of SPAC Class A Common Stock made as part of SPAC Share Redemptions;

(v)            other than additional SPAC Convertible Notes in connection with Working Capital Loans permitted by Section 7.3(a)(vi), issue, deliver, sell, authorize, pledge, amend, exchange, settle or otherwise encumber, or agree to any of the foregoing with respect to, any shares of capital stock or other equity securities or ownership interests, or any securities convertible into or exchangeable for shares of capital stock or other equity securities or ownership interests, or subscriptions, rights, warrants or options to acquire any shares of capital stock or other equity securities or ownership interests or any securities convertible into or exchangeable for shares of capital stock or other equity securities or other ownership interests, or enter into other agreements or commitments of any character obligating it to issue any such shares, equity securities or other ownership interests or convertible or exchangeable securities, in each case, of SPAC or any of its Subsidiaries;

(vi)            other than as expressly required by the Support and Non-Redemption Agreement and for Working Capital Loans not exceeding an aggregate amount equal to $200,000, enter into, renew or amend in any material respect, any transaction or Contract with an Affiliate of SPAC (including, for the avoidance of doubt, (x) the Sponsor, and (y) any Person in which the Sponsor has a direct or indirect legal, contractual or beneficial ownership interest of five percent (5%) or greater);

(vii)            (A) make or change any material election in respect of material Taxes, (B) materially amend, modify or otherwise change any filed material Tax Return, (C) enter into any closing agreement in respect of material Taxes or enter into any Tax indemnity, Tax sharing or Tax allocation or similar agreement in respect of material Taxes (other than any customary commercial Contracts (or Contracts entered into in the ordinary course of business) not primarily related to Taxes), (D) surrender any right to claim a material refund of Taxes, (E) consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, or (F) settle any claim or assessment in respect of material Taxes, except, in each case, in the ordinary course of business;

(viii)            knowingly take or cause to be taken, or knowingly fail to take or cause to be taken, any action, where such action or failure to act could reasonably be expected to prevent (x) the SPAC Merger from qualifying for the SPAC Merger Intended Tax Treatment, (y) the Sponsor Exchange from qualifying for the Exchange Intended Tax Treatment, or (z) the Company Merger and the PIPE Investment from qualifying for the Company Merger Intended Tax Treatment;

(ix)            acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all or a material portion of the equity interests in or assets of, or form or enter into, as applicable, any corporation, partnership, association, joint venture or other business organization or division thereof;

(x)            incur or assume any Indebtedness for borrowed money, or guarantee any Indebtedness for borrowed money of another Person;

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(xi)            (A) issue any SPAC Securities or securities exercisable for or convertible into SPAC Securities, (B) grant any options, warrants or other equity-based awards with respect to SPAC Securities not outstanding on the date hereof, or (C) amend, modify or waive any of the material terms or rights set forth in any SPAC Warrant or the SPAC Warrant Agreement, including any amendment, modification or reduction of the warrant price set forth therein;

(xii)            adopt a plan of, or otherwise enter into or effect, a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the business and operations of SPAC or Merger Sub 1;

(xiii)            hire or engage any individual; adopt any Benefit Plan or enter into or adopt any Collective Bargaining Agreement (or enter into any other material commitment with any Labor Organization);

(xiv)            except as required by Law or GAAP, make any material changes to its accounting methods, principles or practices;

(xv)            enter into, renew, modify or revise any material Contract;

(xvi)            waive, release, settle, compromise or otherwise resolve any Legal Proceeding relating to SPAC or Merger Sub 1 or to their respective properties or assets, except where such waivers, releases, settlements or compromises involve only the payment of monetary damages in an amount less than $250,000 in the aggregate;

(xvii)            acquire any ownership interest in any real property; or

(xviii)            authorize, commit or agree to take, whether in writing or otherwise, any action prohibited under this Section 7.3.

Section 7.4      Access to Information. Subject to confidentiality obligations (whether contractual or imposed by applicable Law or otherwise) that may be applicable to information furnished to SPAC by third parties that may be in SPAC’s possession from time to time, and except for any information that is subject to attorney-client privilege or other privilege (provided, that, to the extent possible, the parties shall cooperate in good faith to permit disclosure of such information in a manner that preserves such privilege or compliance with such confidentiality obligation), and to the extent permitted by applicable Law, SPAC and Merger Sub 1 shall afford to the Target Companies and their Representatives reasonable access during the Interim Period, during normal business hours and with reasonable advance written notice, in such manner as to not materially interfere with the ordinary course of business of SPAC and Merger Sub 1, to its properties, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees, and shall furnish the Target Companies or such Representatives with all financial and operating data and other information concerning the affairs of SPAC or Merger Sub 1 as any Target Companies or any such Representatives may reasonably request; provided, however, that such access shall not include any information which in the opinion of legal counsel of SPAC, would result in the loss of attorney-client privilege or other privilege. During the Interim Period, all information obtained by the Target Companies or any of their respective Representatives in connection with this Agreement (including pursuant to this Section 7.4) shall remain subject to the Confidentiality Agreement. Notwithstanding anything to the contrary in the Confidentiality Agreement, the Confidentiality Agreement shall remain in full force and effect in accordance with its terms (but subject to the preceding sentence) until the Closing Date or, if for any reason this Agreement is terminated prior to the Closing pursuant to Section 10.1, until the date that is two years after such termination.

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Section 7.5      Termination of Original RRA. Prior to the Closing, in connection with the entry into the Registration Rights Agreement, SPAC shall cause to be terminated the Original RRA and any other existing registration rights agreements entered into between SPAC and any other party, including the Sponsor but not including any other PIPE Investors. No parties to any such terminated registration rights agreements shall have any further rights or obligations thereunder.

Section 7.6      Shareholder Litigation. In the event that any litigation related to this Agreement, any Ancillary Agreement or the Transactions is brought, or threatened in writing, against SPAC or the SPAC Board by any of SPAC Shareholders prior to the Closing, SPAC shall promptly notify the Target Companies of any such litigation and keep the Target Companies reasonably informed with respect to the status thereof. SPAC shall provide the Target Companies the opportunity to participate in (subject to a customary joint defense agreement), but not control, the defense of any such litigation, shall give due consideration to the Target Companies’ advice with respect to such litigation and shall not settle any such litigation if and to the extent all such settlement payments exceed the amount set forth in Section 7.6 of the SPAC Disclosure Letter in the aggregate without the prior written consent of the Company, such consent not to be unreasonably withheld, conditioned or delayed.

Section 7.7      Extension of SPAC Deadline. SPAC shall take, and shall cause its controlled Affiliates to use commercially reasonable efforts to extend the period of time SPAC is afforded under its Organizational Documents and the SPAC Prospectus to consummate an initial business combination (the “SPAC Business Combination Deadline”) to a date following the date of the Closing, including holding one or more special meetings of the shareholders of SPAC, and all necessary adjournments or postponements thereof, to approve one or more amendments to SPAC’s Organizational Documents to extend the SPAC Business Combination Deadline, as necessary to consummate the Transactions.

Article VIII
JOINT COVENANTS

Section 8.1      Regulatory Filings.

(a)        In connection with the Transactions, each Party shall, as promptly as reasonably practicable, use commercially reasonable efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the Ancillary Agreement (the “Regulatory Filings”). Each Party shall use commercially reasonable efforts to cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals and effect any such filing, withdrawal or amendment. With respect to the Regulatory Filings, each Party agrees to use its commercially reasonable efforts and cooperate with the other Parties (i) in timely making inquiries with Governmental Authorities regarding the Regulatory Filings, (ii) in determining if any Regulatory Filings are required by Governmental Authorities, (iii) in timely making all Regulatory Filings (except with respect to such jurisdictions where the Parties agree that a Regulatory Filing is not required) and directing their respective security holders to make, or cause to be made, all Regulatory Filings as necessary, and (iv) promptly informing the other Parties of any material communication with any Governmental Authority regarding the Transactions. Without limiting the generality of the foregoing, each Party shall (and, to the extent required, shall cause its Affiliates to) (x) make any and all appropriate filings pursuant to the HSR Act with respect to the transactions contemplated by this Agreement promptly (and as soon as reasonably practical following the date of this Agreement), (y) respond as promptly as reasonably practicable to any requests by any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act, and (z) request early termination of the applicable waiting period under the HSR Act, if available, and not extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the Transactions, except with the prior written consent of the other Parties. Notwithstanding anything herein to the contrary, Epic shall bear 100% of the HSR Act filing fees.

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(b)         During the Interim Period, SPAC and Merger Sub 1, on the one hand, and each Target Company on the other hand, shall give counsel for Epic and the Company (in the case of SPAC and Merger Sub 1) or SPAC (in the case of any Target Company) a reasonable opportunity to review in advance, and consider in good faith the views of the other in connection with, any proposed written material communication to any Governmental Authority relating to any Regulatory Filing. Each of the Parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone with any Governmental Authority in connection with any Regulatory Filing unless it consults with, in the case of SPAC or Merger Sub 1, Epic and the Company, or, in the case of any Target Company, SPAC, in advance and, to the extent not prohibited by such Governmental Authority, gives such other Party the opportunity to attend and participate in such meeting or discussion.

(c)         Notwithstanding anything in this Agreement to the contrary, nothing in this Section 8.1 shall require any Party to (i) propose, negotiate, commit to or effect, by consent decree, hold separate order, or otherwise, the sale, transfer, license, divestiture or other disposition of, or any prohibition or limitation on the ownership, operation, effective control or exercise of full rights of ownership of, any of the businesses, product lines or assets of such Party or any of such Party’s Subsidiaries, and (ii) defend any Legal Proceeding instituted (or threatened to be instituted) by any Person under any antitrust Law or seek to have any stay, restraining order, injunction or similar order entered by any Governmental Authority vacated, lifted, reversed, or overturned.

Section 8.2      Preparation of Registration Statement and Proxy Statement/Prospectus; Shareholders’ Meeting and Approvals.

(a)         Registration Statement and Proxy Statement/Prospectus.

(i)            As promptly as practicable after the execution of this Agreement and delivery of the applicable Updated Financial Statements pursuant to Section 6.4, (A) SPAC and Flexjet shall prepare, and SPAC shall file, or cause to be filed, with the SEC, a proxy statement/prospectus to be filed (or submit, or cause to be submitted, on a confidential basis) with the SEC as part of the Registration Statement, which proxy statement/prospectus will be used for the purpose of soliciting proxies from the SPAC Shareholders at the SPAC Shareholders’ Meeting to adopt and approve the Transaction Proposals and other matters reasonably related to the Transaction Proposals, all in accordance with and as required by the SPAC’s Organizational Documents, applicable Law, and any applicable rules and regulations of the SEC and the NYSE (such proxy statement, together with any amendments or supplements thereto, the “Proxy Statement/Prospectus”), and (B) SPAC and Flexjet shall prepare, and Flexjet shall file, or cause to be filed (or submit, or cause to be submitted, on a confidential basis), with the SEC, a registration statement on Form S-4, or other appropriate form (such registration statement, together with any amendments or supplements thereto, the “Registration Statement”), in which the Proxy Statement/Prospectus will be included, in connection with the registration under the Securities Act of the shares of Flexjet Common Stock and Flexjet Assumed Public $11.50 Warrants to be issued in connection with the Transactions. Each Party shall use its commercially reasonable efforts to cause the Registration Statement and the Proxy Statement/Prospectus to comply as to form and substance with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder, to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing, to keep the Registration Statement effective as long as is necessary to consummate the Transactions, and promptly respond to comments, requests to amend or requests for additional information with respect to the Registration Statement by the SEC. In the event there is any tax opinion, comfort letter or other opinion required to be provided in connection with the Registration Statement, notwithstanding anything to the contrary, neither this provision nor any other provision in this Agreement shall require counsel to the Company or Epic or their respective tax advisors to provide an opinion that (w) the SPAC Merger qualifies as a reorganization within the meaning of Section 368(a) of the Code, (x) the Company Merger qualifies as a reorganization within the meaning of Section 368(a) of the Code, (y) the Company Merger and the PIPE Investment, taken together, qualify as a transaction described in Section 351 of the Code, or (z) the Mergers otherwise qualify for the Intended Tax Treatment. Flexjet also agrees to use its commercially reasonable efforts to obtain all necessary state securities law or “Blue Sky” permits and approvals, or to file such Blue Sky notices, as are required to carry out the Transactions, and SPAC and Sponsor shall furnish all information concerning SPAC and any of its members or shareholders, as may be reasonably requested in connection with any such action. Each of SPAC and the Target Companies agrees to furnish to the other party all information concerning itself, its Subsidiaries, officers, directors, managers, stockholders, and other equityholders and information regarding such other matters as may be reasonably necessary or advisable or as may be reasonably requested in connection with the Registration Statement and Proxy Statement/Prospectus, a Current Report on Form 8-K pursuant to the Exchange Act in connection with the Transactions, or for inclusion in any other statement, filing, notice or application made by or on behalf of Flexjet, SPAC and the Target Companies or their respective Subsidiaries to any regulatory authority (including the NYSE and the SEC) in connection with the Mergers and the other Transactions.

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(ii)            No filing of, or amendment or supplement to, the Registration Statement or the Proxy Statement/Prospectus will be made by Flexjet or SPAC without providing the other with a reasonable opportunity to review and comment thereon and each Party shall give reasonable and good faith consideration to any comments made by any other Party and their counsel. Each of SPAC and the Target Companies will be given a reasonable opportunity to participate in the response to any SEC comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with SPAC or the Target Companies or their counsel in any discussions or meetings with the SEC. SPAC shall comply in all material respects with all applicable rules and regulations promulgated by the SEC, any applicable rules and regulations of the NYSE, SPAC’s Organizational Documents, and this Agreement in the preparation, filing and distribution of the Proxy Statement/Prospectus, any solicitation of proxies thereunder, the calling and holding of the SPAC Shareholders’ Meeting and the SPAC Share Redemption. Flexjet shall comply in all material respects with all applicable rules and regulations promulgated by the SEC, Flexjet’s Organizational Documents and this Agreement in the preparation and filing of the Registration Statement.

(iii)            Each of SPAC and the Target Companies shall use commercially reasonable efforts to ensure that none of the information supplied by or on its behalf for inclusion or incorporation by reference in (A) the Registration Statement will, at the time the Registration Statement is filed with the SEC, at each time at which it is amended and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading or (B) the Proxy Statement/Prospectus will, at the date it is first mailed to the SPAC Shareholders and at the time of the SPAC Shareholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.

(iv)            If at any time prior to the Company Merger Effective Time any information relating to any Target Company or SPAC, or any of their respective Subsidiaries, Affiliates, directors or officers is discovered by a Target Company or SPAC, which is required to be set forth in an amendment or supplement to the Proxy Statement/Prospectus or the Registration Statement, so that neither of such documents would include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, with respect to the Proxy Statement/Prospectus, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law and SPAC’s Organizational Documents, disseminated to the SPAC Shareholders.

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(v)            Each of SPAC and each Target Company shall provide each other with copies of any written comments, and shall inform such other Parties of any oral comments, that SPAC or Flexjet receives from the SEC or its staff with respect to the Registration Statement or Proxy Statement/Prospectus promptly after the receipt of such comments.

(vi)            Without limiting the generality of the foregoing, each of the Parties shall cooperate with each other in the preparation of each of the Proxy Statement/Prospectus and the Registration Statement, and each Party shall furnish SPAC or Flexjet, as applicable, with all information concerning it and its Affiliates as the providing party (after consulting with counsel) may deem reasonably necessary or advisable in connection with the preparation of the Proxy Statement/Prospectus or the Registration Statement, as applicable.

(b)           SPAC Shareholder Approval.

(i)            SPAC shall (x) as promptly as practicable (and in any event, within 10 Business Days) after the Registration Statement is declared effective under the Securities Act, (A) cause the Proxy Statement/Prospectus to be disseminated to SPAC Shareholders in compliance with applicable Law, (B) solely with respect to the Transaction Proposals, duly (1) give notice of and (2) convene and hold a general meeting (the “SPAC Shareholders’ Meeting”) in accordance with SPAC’s Organizational Documents and Section 710 of the NYSE Listing Rules for a date no later than 30 Business Days following the date the Registration Statement is declared effective, and (C) solicit proxies from the holders of SPAC Common Stock to vote in favor of each of the Transaction Proposals, and (y) provide its shareholders with the opportunity to elect to effect a SPAC Share Redemption.

(ii)            SPAC shall, through the SPAC Board, recommend to the SPAC Shareholders the (A) adoption and approval of this Agreement and the Transactions, including the Mergers, (B) adoption of the Second Amended and Restated Flexjet Charter and Restated Flexjet Bylaws, in connection with the SPAC Merger, including any separate or unbundled advisory proposals as are required to implement the foregoing, (C) adoption and approval of any other proposals as the SEC (or staff member thereof) may indicate are necessary in its comments to the Registration Statement or correspondence related thereto, (D) adoption and approval of any other proposals as reasonably agreed by SPAC and the Company to be necessary or appropriate in connection with the Transactions and (E) adjournment of the SPAC Shareholders’ Meeting to a later date or dates, if necessary or appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with any of the foregoing, (such proposals in (A) through (E), together, the “Transaction Proposals”), and include such recommendations in the Proxy Statement/Prospectus; provided that SPAC may postpone or adjourn the SPAC Shareholders’ Meeting (x) to solicit additional proxies for the purpose of obtaining the SPAC Shareholder Approval, (y) for the absence of a quorum or (z) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosures that SPAC has determined based on advice of outside legal counsel after consultation with the Target Companies’ outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by shareholders of SPAC prior to the SPAC Shareholders’ Meeting.

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(iii)            The SPAC Board shall not withdraw, amend, qualify or modify its recommendation to the SPAC Shareholders that they vote in favor of the Transaction Proposals (together with any withdrawal, amendment, qualification or modification of its recommendation to the SPAC Shareholders of SPAC described in the Recitals hereto, a “Change in Recommendation”); provided, however, that the SPAC Board may, at any time prior to, but not after, obtaining SPAC Shareholder Approval, withdraw, amend, qualify or modify its recommendation to the SPAC Shareholders that they vote in favor of the Transaction Proposals in response to an Intervening Event that has occurred (an “Intervening Event Change in Recommendation”) if the SPAC Board determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be a breach of the fiduciary duties of the SPAC Board to the SPAC Shareholders under applicable Law. Notwithstanding anything to the contrary in this Agreement, the SPAC Board will not be entitled to make, or agree to resolve to make, an Intervening Event Change in Recommendation unless: (A) the Target Companies shall have received written notice from SPAC of SPAC’s intention to make an Intervening Event Change in Recommendation at least five Business Days prior to the taking of such action by SPAC (it being understood that any material development with respect to the applicable Intervening Event shall require a new notice but with an additional three Business Day (instead of a five Business Day if such new notice is delivered after the second day of the original five Business Day period) period from the date of such new notice) (the “Intervening Event Notice Period”), which notice shall specify the applicable Intervening Event in reasonable detail and that a failure to make an Intervening Event Change in Recommendation would be a breach of the SPAC Board’s fiduciary duties to the SPAC Shareholders under applicable Law, (B) during the Intervening Event Notice Period and prior to making an Intervening Event Change in Recommendation, if requested by a Target Company, SPAC and its Representatives shall have negotiated in good faith with such Target Company and its Representatives regarding any revisions or adjustments proposed by such Target Company to the terms and conditions of this Agreement as would enable SPAC to proceed with its recommendation of this Agreement and the Transactions contemplated hereby and not make such Intervening Event Change in Recommendation and (C) SPAC may make an Intervening Event Change in Recommendation only if the SPAC Board, after considering in good faith any revisions or adjustments to the terms and conditions of this Agreement that the applicable Target Company, prior to the expiration of the Intervening Event Notice Period, offers in writing in a manner that would form a binding Contract if accepted by SPAC, continues to determine and reaffirms in good faith (after consultation with its outside legal counsel) that failure to make an Intervening Event Change in Recommendation would be a breach of its fiduciary duties to the SPAC Shareholders under applicable Law. Notwithstanding anything to the contrary in this Agreement, (x) SPAC’s obligations to duly give notice of, convene and hold the SPAC Shareholders Meeting shall not be affected by any Intervening Event Change in Recommendation, (y) SPAC agrees to duly give notice of, convene and hold the SPAC Shareholders Meeting and submit for approval the Transaction Proposals and (z) SPAC agrees that if the SPAC Shareholder Approval shall not have been obtained at any such SPAC Shareholders Meeting, then SPAC shall promptly continue to take all such necessary actions, and hold additional meetings of its shareholders in order to obtain the SPAC Shareholder Approval. An “Intervening Event” shall mean any material fact, circumstance, occurrence, event, development, change or condition or combination thereof that (i) was not known and was not reasonably foreseeable to SPAC or the SPAC Board as of the date of this Agreement (or if known, the consequences of which were not known or were not reasonably foreseeable as of the date of this Agreement) and that becomes known to the SPAC or SPAC Board prior to the SPAC Shareholders’ Meeting, and (ii) does not relate to any Business Combination Proposal; provided, however, that (1) any change in the price or trading volume of SPAC Class A Common Stock shall not be taken into account for purposes of determining whether an Intervening Event has occurred (provided that the underlying factors may be taken into account); (2) in no event shall any fact, circumstance, occurrence, event, development, change or condition or combination thereof that has had or would reasonably be expected to have an adverse effect on the business, results of operations or financial condition of any of the Target Companies or any of their respective Subsidiaries constitute an Intervening Event unless such event, fact, circumstance or development constitutes an Epic Material Adverse Effect (and for the avoidance of doubt, any fact, circumstance, occurrence, event, development, change or condition or combination thereof excluded from the definition of Epic Material Adverse Effect shall not constitute an Intervening Event); and (3) any Target Company or any of its Subsidiaries meeting, failing to meet or exceeding projections shall not be taken into account for purposes of determining whether an Intervening Event has occurred (provided that the underlying factors may be taken into account). Notwithstanding anything to the contrary contained in this Agreement, during an Intervening Event Notice Period, the obligations of SPAC or the SPAC Board under this Agreement to make filings with the SEC with respect to the proposals contemplated herein, to give notice for or to convene a meeting of shareholders, or make a recommendation, shall be tolled during such period, and in the event a filing or notice for a meeting was made prior to the Intervening Event Notice Period, SPAC shall be permitted to adjourn such meeting and amend such filing as necessary to provide sufficient time for the SPAC Shareholders to consider any revised recommendation.

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(iv)            To the fullest extent permitted by applicable Law, (x) SPAC agrees to establish a record date for, duly call, give notice of, convene and hold the SPAC Shareholders’ Meeting and submit for approval the Transaction Proposals and (y) SPAC agrees that if the SPAC Shareholder Approval shall not have been obtained at any such SPAC Shareholders’ Meeting, then SPAC shall promptly continue to take all such reasonable necessary actions, including the actions required by this Section 8.2(b), and hold additional SPAC Shareholders’ Meetings in order to obtain the SPAC Shareholder Approval. SPAC may only adjourn the SPAC Shareholders’ Meeting (i) to solicit additional proxies for the purpose of obtaining the SPAC Shareholder Approval, (ii) for the absence of a quorum and (iii) to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that SPAC has determined in good faith after consultation with outside legal counsel is required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by SPAC Shareholders prior to the SPAC Shareholders’ Meeting. SPAC agrees that it shall provide the holders of shares of SPAC Class A Common Stock the opportunity to elect redemption of such shares of SPAC Class A Common Stock in connection with the SPAC Shareholders’ Meeting, as required by SPAC’s Organizational Documents.

Section 8.3      Support of Transaction. Without limiting any covenant contained in Article VI, Article VII or Article VIII, which covenants shall control to the extent of any conflict with the succeeding provisions of this Section 8.3, each Party shall, and shall cause its respective Subsidiaries to: (a) use commercially reasonable efforts to obtain as soon as practicable all material consents and approvals of third parties (including any Governmental Authority) that such Party or any of its respective Affiliates are required to obtain in order to consummate the Transactions; and (b) use its commercially reasonable efforts to take such other action as soon as practicable as may be reasonably necessary or as another Party may reasonably request to satisfy the conditions of Article IX or otherwise to comply with this Agreement and to consummate the Transactions as soon as practicable and in accordance with all applicable Law (including providing any reasonable and customary certifications, opinions of counsel and other materials necessary to permit another Party to comply with its obligations to placement agents in connection with the PIPE Investment and any financial advisor of any Party in connection with the delivery of a fairness opinion or other deliverable). Notwithstanding anything to the contrary contained herein, in no event shall any Target Company or any of its Subsidiaries be obligated to bear any expense or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals pursuant to the terms of any Contract to which any Target Company or any of its Subsidiaries is a party or otherwise in connection with the consummation of the Transactions.

Section 8.4      Tax Matters. All transfer, documentary, sales, use, excise, value added, real property, stamp, registration and other similar Taxes, fees and costs (including any associated penalties and interest) (“Transfer Taxes”) incurred in connection with the Transactions shall be borne and paid by Flexjet and shall constitute SPAC Transaction Expenses. The Parties shall (and shall cause their respective Affiliates to) cooperate in good faith to minimize, to the extent permissible under applicable Law, the amount of any such Transfer Taxes.

Section 8.5      Cooperation; Consultation. From the date of the announcement of this Agreement or the Transactions (pursuant to any applicable public communication made in compliance with Section 11.14), until the earlier of the Closing and valid termination of this Agreement pursuant to Article X, Flexjet shall use its commercially reasonable efforts to, and shall instruct its financial advisors to, keep SPAC and Epic and their respective financial advisors reasonably informed with respect to the PIPE Investment, including by (i) providing regular updates and (ii) consulting and cooperating with, and considering in good faith any feedback from, SPAC or Epic or their respective financial advisors with respect to such matters; provided, that each of SPAC, Epic and Flexjet acknowledges and agrees that none of their respective financial advisors shall be entitled to any fees with respect to the PIPE Investment, unless otherwise mutually agreed by each of Flexjet, the Company, Epic and SPAC in writing.

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Section 8.6      Post-Closing Directors and Officers of Flexjet. In accordance with Flexjet’s Organizational Documents, Flexjet shall take all such actions within its power as may be necessary or appropriate, including causing the directors and officers of Flexjet to resign, such that immediately following the Company Merger Effective Time:

(a)          the Board of Directors of Flexjet shall initially consist of seven members, with such initial members to be designated in accordance with the director nomination rights set forth in the Stockholders Agreement;

(b)          the Board of Directors of Flexjet shall have at least four “independent” directors for the purposes of the NYSE, each of whom shall serve in such capacity in accordance with the terms of Flexjet’s Organizational Documents following the Company Merger Effective Time;

(c)          the Board of Directors of Flexjet will be a classified board with three classes of directors, with:

(i)            a first class of directors (the “Class I Directors”), initially serving a term effective from the Closing until the first annual meeting of the stockholders of Flexjet held following the Closing (but any subsequent Class I Directors serving a three -year term);

(ii)            a second class of directors (the “Class II Directors”), initially serving a term effective from the Closing until the second annual meeting of stockholders of Flexjet held following the Closing (but any subsequent Class II Directors serving a three -year term); and

(iii)            a third class of directors (the “Class III Directors”), serving a term effective from the Closing until the third annual meeting of stockholders of Flexjet held following the Closing (and any subsequent Class III Directors serving a three-year term); and

(d)          the initial officers of Flexjet shall be certain Persons, as determined by the Company and Epic and communicated to SPAC prior the Company Merger Effective Time, who shall serve in such capacity in accordance with the terms of Flexjet’s Organizational Documents following the Company Merger Effective Time.

Section 8.7      Indemnification and Insurance.

(a)         From and after the Company Merger Effective Time, Flexjet agrees that it shall indemnify and hold harmless each present and former director and officer of (x) Flexjet, the Target Companies and each of their respective Subsidiaries and (y) SPAC, Merger Sub 1 and each of their respective Subsidiaries (clauses (x) and (y), collectively, the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Legal Proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Company Merger Effective Time, whether asserted or claimed prior to, at or after the Company Merger Effective Time, to the fullest extent that Flexjet, any Target Company, SPAC or Merger Sub 1 and each of their respective Subsidiaries, as the case may be, would have been permitted under applicable Law and their respective Organizational Documents in effect on the date of this Agreement to indemnify such D&O Indemnified Parties (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, Flexjet shall, and shall cause its Subsidiaries to, (i) maintain for a period of not less than six years from the Company Merger Effective Time provisions in their respective Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of the D&O Indemnified Parties that are no less favorable to those Persons than the provisions applicable to those Persons pursuant to the Organizational Documents of the Target Companies, Flexjet, SPAC, Merger Sub 1 or their respective Subsidiaries, as applicable, as of the date of this Agreement, and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by applicable Law.

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(b)         At or prior to the Closing, Flexjet shall purchase and maintain in effect, for a period of six years from the Company Merger Effective Time, directors’ and officers’ liability insurance covering those Persons who are currently covered by Flexjet’s. SPAC’s, or any of the Target Companies or their respective Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to SPAC or the Target Companies, as applicable) on terms no less favorable than the terms of such current insurance coverage, except that in no event shall Flexjet be required to pay an annual premium for such insurance in excess of 300% of the most expensive most recent aggregate annual premium paid or payable by any of SPAC, Flexjet or any Target Company for any such insurance policy for the 12-month period ended on the date of this Agreement; provided, however, that (i) Flexjet may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six-year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Company Merger Effective Time and (ii) if any claim is asserted or made within such six year period, any insurance required to be maintained under this Section 8.7 shall be continued in respect of such claim until the final disposition thereof.

(c)         The rights of each D&O Indemnified Party hereunder shall be in addition to, and not in limitation of, any other rights such Person may have under the Organizational Documents of SPAC, any of the Target Companies or any of their respective Subsidiaries, any other indemnification arrangement, any applicable Law or otherwise. Notwithstanding anything contained in this Agreement to the contrary, this Section 8.7 shall survive the consummation of the Mergers indefinitely and shall be binding, jointly and severally, on Flexjet and all successors and assigns of Flexjet. In the event that Flexjet or any of its successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Flexjet shall ensure that proper provision shall be made so that the successors and assigns of Flexjet shall succeed to the obligations set forth in this Section 8.7.

(d)         As promptly as reasonably practicable following the Company Merger Effective Time, Flexjet and each post-Closing director and officer of Flexjet shall enter into a customary indemnification agreement in a form to be mutually agreed by Flexjet, Epic and SPAC prior to the Closing, which indemnification agreements shall continue to be effective following the Closing.

Section 8.8      Employee Matters.

(a)         Prior to the Closing Date, Flexjet shall approve and adopt an incentive equity plan substantially in the form attached hereto as Exhibit E (with such changes that may be agreed in writing by SPAC and the Target Companies (such agreement not to be unreasonably withheld, conditioned or delayed by either SPAC or any Target Company, as applicable)) (the “Incentive Equity Plan”). Within five Business Days following the expiration of the 60 day period following the date Flexjet has filed current Form 10 information with the SEC reflecting its status as an entity that is not a shell company, Flexjet shall file an effective registration statement on Form S-8 (or other applicable form, including Form S-3) with respect to the Flexjet Common Stock issuable under the Incentive Equity Plan, and Flexjet shall use commercially reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus or prospectuses contained therein) for so long as awards granted pursuant to the Incentive Equity Plan remain outstanding.

(b)         Prior to Closing, Flexjet shall use commercially reasonable efforts to enter into Employment Agreements with each of the Key Employees.

(c)         Prior to Closing, the Board of Directors of Epic shall take all steps necessary to cause all Epic Options previously granted under the Epic Incentive Plan to become fully vested and exercisable, immediately prior to, and conditional upon the Closing.

(d)        Notwithstanding anything herein to the contrary, nothing in this Agreement, whether express or implied, (i) shall be construed to establish, amend, or modify any employee benefit plan, program, agreement or arrangement, (ii) shall limit the right of any Party or their respective Affiliates to amend, terminate or otherwise modify any Epic Benefit Plan or other employee benefit plan, agreement or other arrangement following the Closing Date, or (iii) shall confer upon any Person who is not a party to this Agreement (including any equityholder, any current or former director, manager, officer, employee, consultant or independent contractor of any Party, or any participant in any Epic Benefit Plan or other employee benefit plan, agreement or other arrangement of any Party (or any dependent or beneficiary thereof)), any right to continued or resumed employment or recall, any right to compensation or benefits, or any third-party beneficiary or other right of any kind or nature whatsoever.

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Section 8.9      Notification of Certain Matters. During the Interim Period, each Party shall provide the other Parties with prompt written notice upon becoming aware of any event, fact or circumstance that would reasonably be expected to cause any of such Party’s conditions set forth in Article IX not to be satisfied. No such notice shall constitute an acknowledgment or admission by the Party providing the notice regarding whether or not any of the conditions to the Closing have been satisfied or in determining whether or not any of the representations, warranties or covenants contained in this Agreement have been breached. No notice pursuant to this Section 8.9 shall affect any representation or warranty in this Agreement of any Party, or any condition to the obligations of any Party.

Section 8.10      Insider Letter. Pursuant to the Insider Letters, each of the applicable individuals parties thereto and the Sponsor agreed to vote all of the shares of the capital stock of SPAC they hold to approve the Transaction Proposals and not to redeem any such shares in connection with the Transactions. SPAC hereby agrees to enforce the terms and conditions of the Insider Letters, including the agreement to vote all of the shares of the capital stock of SPAC they hold to approve the Transaction Proposals and the agreement no to redeem any such shares, in connection with the consummation of the Transactions.

Section 8.11      Warrant Agreements . At or prior to the SPAC Merger Effective Time, SPAC and Flexjet shall execute and deliver the Warrant Assumption Agreement. Pursuant to the Warrant Assumption Agreement, SPAC and Flexjet shall cause to become effective at and subject to the Closing, the Flexjet Assumed Warrant Agreement.

Section 8.12      SPAC Merger. Subject to receipt of the SPAC Shareholder Approval, one Business Day prior to the Company Merger Effective Time (which shall also be the calendar day immediately prior to the Closing Date) (and for the avoidance of doubt, prior to the commencement of the Sponsor Exchange and the PIPE Investment and following the Pre-Closing Reorganization), SPAC, Flexjet and Merger Sub 2 shall, in accordance with applicable Law, this Agreement, any applicable rules and regulations of the SEC, the NYSE and each such Person’s Organizational Documents, as applicable, cause the SPAC Merger to become effective, and, in furtherance thereof, substantially simultaneously or immediately following the SPAC Merger, shall (a) adopt the First Amended and Restated Flexjet Charter and First Amended and Restated Flexjet Bylaws, (b) complete, make and procure all those filings required to be made with the Cayman Registrar and the Secretary of State of the State of Delaware in connection with the SPAC Merger, and (c) obtain a certificate of strike-off by way of merger from the Cayman Registrar and a certificate of merger from the Secretary of State of the State of Delaware.

Section 8.13      Stock Exchange Listing. From the date hereof through the SPAC Merger Effective Time, SPAC shall use commercially reasonable efforts to remain listed as a public company on the NYSE. Flexjet shall prepare and submit to NYSE a listing application, if required under NYSE rules, covering the shares of Flexjet Common Stock and the Flexjet Assumed Public $11.50 Warrants, in each case, issuable in the Mergers, and shall use commercially reasonable efforts to obtain approval for the listing thereof.

Section 8.14      Public Filings. During the Interim Period, SPAC will keep current and timely file all of the forms, reports, schedules, statements and other documents required to be filed or furnished with the SEC, including all necessary amendments and supplements thereto, and otherwise comply in all material respects with its reporting obligations under applicable Laws (the “Additional SEC Reports”). All such Additional SEC Reports (including any financial statements or schedules included therein) (i) shall be prepared in all material respects in accordance with either the requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act, as the case may be, and the rules and regulations promulgated thereunder, and (ii) assuming the truth and completeness of any information provided to SPAC by or on behalf of the Target Companies or any of their respective Subsidiaries, at the time they are filed, or, if amended, as of the date of such amendment, contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. As used in this Section 8.14, the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC or the NYSE. Any Additional SEC Reports which discuss or refer to this Agreement or the Transactions, the contents of which are inconsistent with that of, or otherwise not disclosed in, any prior or contemporaneous press release or public announcement by the Target Companies or SPAC (or any of their respective Affiliates) in compliance with this Agreement (other than any current report on Form 8-K, with respect to which the proviso in this sentence shall apply and no consent shall be required) shall be subject to the prior review and approval of the Target Companies (which approval shall not to be unreasonably withheld, delayed or conditioned); provided, that in the case of a current report required to be filed by SPAC or an Affiliate thereof on Form 8-K, SPAC shall, prior to the filing of any such current report on Form 8-K, consult with the Target Companies as to the timing and contents of such current report on Form 8-K.

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Section 8.15      Assignment of Trust Account. At or prior to the SPAC Merger Effective Time, SPAC and Flexjet shall cause the Trust Agreement to be assigned to Flexjet.

Article IX
CONDITIONS TO OBLIGATIONS

Section 9.1      Conditions to Obligations of all Parties. The respective obligations of each Party to consummate, or cause to be consummated, the Mergers is subject to the satisfaction of the following conditions at or prior to the SPAC Merger Effective Time, any one or more of which may be waived (if legally permitted) in writing by all of such parties:

(a)         The SPAC Shareholder Approval shall have been obtained;

(b)         The Target Company Securityholder Approvals shall have been obtained;

(c)         The Registration Statement shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC and not withdrawn;

(d)         The shares of Flexjet Common Stock to be issued in connection with the SPAC Merger and the Company Merger shall have been approved for listing upon the Closing on the NYSE, subject only to notice of issuance;

(e)         The Flexjet Assumed Public $11.50 Warrants shall have been approved for listing upon the Closing on the NYSE, subject only to notice of issuance;

(f)         There shall not be in force any Governmental Order enjoining or prohibiting the consummation of the Mergers or any Law that makes the consummation of the Mergers illegal or otherwise prohibited at the SPAC Merger Effective Time or the Company Merger Effective Time, as applicable; provided, that the Governmental Authority issuing such Governmental Order has jurisdiction over the Parties with respect to the Transactions; and

(g)        All applicable waiting periods (and any extensions thereof) under the HSR Act and all other Governmental Approvals applicable to the Transactions, shall have expired or been terminated, or otherwise obtained, as applicable.

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Section 9.2      Conditions to Obligations of SPAC and Merger Sub 1. The obligations of SPAC and Merger Sub 1 to consummate, or cause to be consummated, the Mergers are subject to the satisfaction of the following additional conditions at or prior to the SPAC Merger Effective Time or the Company Merger Effective Time, as applicable, any one or more of which may be waived in writing by SPAC:

(a)         (i) The Epic Fundamental Representations shall be true and correct in all material respects, in each case as of the SPAC Merger Effective Time as though made as of the SPAC Merger Effective Time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, and (ii) each of the representations and warranties of the Target Companies contained in this Agreement other than the Epic Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and Epic Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the SPAC Merger Effective Time as though made as of the SPAC Merger Effective Time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that has not had and would not, individually or in the aggregate, reasonably be expected to have an Epic Material Adverse Effect;

(b)         Each of the covenants of the Target Companies to be performed or complied with as of or prior to the SPAC Merger Effective Time or the Company Merger Effective Time, as applicable, shall have been performed or complied with by them in all material respects;

(c)         Since the date of this Agreement, there shall not have occurred an Epic Material Adverse Effect that is continuing as of the SPAC Merger Effective Time;

(d)         The Pre-Closing Reorganization shall have occurred prior to the SPAC Merger Effective Time in accordance with Section 6.6; and

(e)         At or prior to the Company Merger Effective Time, the Target Companies shall have delivered or caused to be delivered all of the certificates, instruments, Contracts and other documents (including all Ancillary Agreements) specified to be delivered by such Target Company hereunder pursuant to Section 2.6(a), duly executed by such Target Company or the other such parties as specified in Section 2.6(a).

Section 9.3      Conditions to the Obligations of the Target Companies. The obligation of the Target Companies to consummate, or cause to be consummated, the Mergers is subject to the satisfaction of the following additional conditions at or prior to the SPAC Merger Effective Time or the Company Merger Effective Time, as applicable, any one or more of which may be waived in writing by the Company:

(a)         (i) The SPAC Fundamental Representations shall be true and correct in all material respects, in each case as of the SPAC Merger Effective Time as though made as of the SPAC Merger Effective Time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct in all material respects at and as of such date, and (ii) each of the representations and warranties of SPAC contained in this Agreement other than the SPAC Fundamental Representations (disregarding any qualifications and exceptions contained therein relating to materiality, material adverse effect and SPAC Material Adverse Effect or any similar qualification or exception) shall be true and correct as of the SPAC Merger Effective Time as though made as of the SPAC Merger Effective Time, except with respect to such representations and warranties which speak as to an earlier date, which representations and warranties shall be true and correct at and as of such date, except for, in each case, inaccuracies or omissions that has not had and that would not, individually or in the aggregate, reasonably be expected to have a SPAC Material Adverse Effect;

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(b)         Each of the covenants of SPAC and Merger Sub 1 to be performed or complied with as of or prior to the SPAC Merger Effective Time or the Company Merger Effective Time, as applicable, and each of the covenants of Flexjet and SPAC Surviving Sub to be performed or complied with between the SPAC Merger Effective Time and the Company Merger Effective Time, shall have been performed or complied with by them in all material respects;

(c)         At the Company Merger Effective Time, (i) the amount of cash available in the Trust Account following the SPAC Shareholders’ Meeting, after deducting the amount required to satisfy the aggregate amount payable with respect to all SPAC Share Redemptions (but prior to payment of (x) any deferred underwriting commissions being held in the Trust Account, and (y) any Company Transaction Expenses or SPAC Transaction Expenses, as contemplated by Section 11.8), plus (ii) the PIPE Investment Amount actually received prior to or substantially concurrently with the Closing (the sum of (i) and (ii), the “Available SPAC Cash”), shall be equal to or greater than $300,000,000;

(d)         Since the date of this Agreement, there shall not have occurred a SPAC Material Adverse Effect that is continuing as of the SPAC Merger Effective Time;

(e)         All of the directors and officers of Flexjet and the SPAC Surviving Sub (other than any such Persons identified as initial directors and officers of Flexjet after the Company Merger Effective Time, in accordance with Section 2.8) shall have resigned or otherwise been removed effective as of the Company Merger Effective Time;

(f)         At or prior to the SPAC Merger Effective Time, SPAC shall have delivered or caused to be delivered all of the certificates, instruments, Contracts and other documents (including all Ancillary Agreements) specified to be delivered by SPAC hereunder pursuant to Section 2.6(b) duly executed by, as applicable, SPAC or the other such parties as specified in Section 2.6(b);

(g)         The Support and Non-Redemption Agreement shall not have been terminated at or prior to the Company Merger Effective Time;

(h)         To the extent executed during the Interim Period pursuant to the terms and conditions of the Eldridge Back-Stop Letter Agreement, the Eldridge Back-Stop Subscription Agreement shall not have been terminated at or prior to the Company Merger Effective Time;

(i)         The Exchange Agreement shall not have been terminated at or prior to the Company Merger Effective Time and the transactions described in the Exchange Agreement shall have been consummated in accordance with the terms thereof at or prior to the Company Merger Effective Time; and

(j)         At or prior to the Company Merger Effective Time, the Trust Agreement shall have been assigned to Flexjet pursuant to Section 8.15.

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Section 9.4            Frustration of Closing Conditions. None of the Parties may rely on the failure of any condition set forth in this Article IX to be satisfied if such failure was caused by such Party’s breach.

Section 9.5            Waiver of Closing Conditions. Upon the occurrence of the Closing, any condition set forth in this Article IX that was not satisfied as of the Closing shall be deemed to have been waived as of and from the Closing.

Article X

TERMINATION/EFFECTIVENESS

Section 10.1          Termination. This Agreement may be terminated and the Transactions abandoned at any time prior to the SPAC Merger Effective Time only as follows:

(a)            by mutual written consent of the Company, Epic and SPAC;

(b)            by the Company, Epic or SPAC if any Governmental Authority having jurisdiction over the Parties with respect to the Transactions shall have enacted, issued, promulgated, enforced or entered any Governmental Order which has become final and non-appealable and has the effect of making consummation of the Transactions illegal, or otherwise preventing or prohibiting consummation of the Transactions or if there shall be adopted any Law that permanently makes consummation of the Mergers illegal or otherwise prohibited;

(c)            by the Company, Epic or SPAC if the SPAC Shareholder Approval shall not have been obtained by reason of the failure to obtain the required vote at SPAC Shareholders’ Meeting duly convened therefor or at any adjournment or postponement thereof;

(d)            by the Company or Epic if approval by the requisite vote of SPAC’s shareholders shall not have been obtained to amend SPAC’s Organizational Documents by October 21, 2022, to extend the SPAC Business Combination Deadline as proposed by SPAC in its definitive proxy statement filed on August 26, 2022 and any amendments, modifications or supplements thereto.

(e)         by the Company, Epic or SPAC, if the Company Merger Effective Time has not occurred on or before the date that is September 30, 2023 after the date of this Agreement (the “Agreement End Date”); provided, that the right to terminate this Agreement under this Section 10.1(e) shall not be available to any such Party that has breached any of its representations, warranties, covenants or agreements under this Agreement if such breach shall have proximately caused the failure of the Transactions to be consummated on or before the Agreement End Date;

(f)          by written notice to the Company and Epic from SPAC if there is any breach of any representation, warranty, covenant or agreement on the part of the Target Companies set forth in this Agreement, such that the conditions specified in Section 9.2(a) or Section 9.2(b) would not be satisfied at the Closing (a “Terminating Company Breach”), except that, if such Terminating Company Breach is curable by the Target Companies through the exercise of its commercially reasonable efforts, then, for a period of up to 30 days after receipt by the Company and Epic of notice from SPAC of such breach (the “Company Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating Company Breach is not cured within the Company Cure Period; provided, however, that the right to terminate this Agreement under this Section 10.1(f) shall not be available to SPAC if SPAC or Merger Sub 1 is then in breach of any of its representations, warranties, covenants or agreements contained in this Agreement such that the conditions specified in Section 9.3(a) or Section 9.3(b) would not be satisfied at the Closing; or

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(g)            by written notice to SPAC from the Company or Epic if there is any breach of any representation, warranty, covenant or agreement on the part of SPAC or Merger Sub 1 set forth in this Agreement, such that the conditions specified in Section 9.3(a) or Section 9.3(b) would not be satisfied at the Closing (a “Terminating SPAC Breach”), except that, if any such Terminating SPAC Breach is curable by SPAC or Merger Sub 1 through the exercise of its commercially reasonable efforts, then, for a period of up to 30 days after receipt by SPAC of notice from the Company or Epic of such breach (the “SPAC Cure Period”), such termination shall not be effective, and such termination shall become effective only if the Terminating SPAC Breach is not cured within SPAC Cure Period; provided, however, that the right to terminate this Agreement under this Section 10.1(g) shall not be available to the Company or Epic if any Target Company is then in breach of any of its representations, warranties, covenants or agreements contained in this Agreement such that the conditions specified in Section 9.2(a) or Section 9.2(b) would not be satisfied at the Closing; or

(h)            by the Company or Epic if there has been a Change in Recommendation.

For the avoidance of doubt, no Person shall have any right to terminate this Agreement after the SPAC Merger Effective Time.

Section 10.2          Notice of Termination; Effect of Termination. Any termination of this Agreement in accordance with Section 10.1 will be effective immediately upon the delivery of written notice of the terminating Party to the other Parties. In the event of the termination of this Agreement pursuant to Section 10.1, this Agreement shall forthwith become void and have no effect, without any liability on the part of any Party or its respective Affiliates, officers, directors or equityholders, other than liability of any of the Parties, as the case may be, for Fraud or any willful and material breach of this Agreement occurring prior to such termination, except that the provisions of (a) this Section 10.2, (b) Article XI (other than Section 11.18) and (c) the last sentence of Section 6.3, and any other Section or Article of this Agreement which are required to survive in order to give appropriate effect to this Section 10.2, Article XI (other than Section 11.18) and the last sentence of Section 6.3 (e.g., definitions), shall survive any termination of this Agreement.

Section 10.3          Expense Reimbursement. In the event this Agreement is validly terminated pursuant to Section 10.1(d), in order to compensate Epic for the expenses associated with the negotiation of this Agreement and the other matters contemplated hereby, SPAC shall pay, or cause to be paid, to Epic an amount equal to the lesser of (a) the Company Transaction Expenses and (b) $1,000,000, in either case, within two Business Days after receipt by SPAC of documented evidence of the Company Transaction Expenses.

Article XI
MISCELLANEOUS

Section 11.1         Trust Account Waiver. Each Target Company acknowledges that SPAC is a blank check company with the powers and privileges to effect a Business Combination. Each Target Company further acknowledges that, as described in the prospectus dated October 19, 2020 (the “SPAC Prospectus”) available at www.sec.gov, substantially all of SPAC’s assets consist of the cash proceeds of SPAC’s initial public offering (the “IPO”) and private placements of its securities and substantially all of those proceeds have been deposited in a trust account for the benefit of SPAC, certain of its public shareholders and the underwriters of SPAC’s IPO (the “Trust Account”). Each Target Company acknowledges that it has been advised by SPAC that, except with respect to interest earned on the funds held in the Trust Account that may be released to SPAC to pay its franchise Tax, income Tax and similar obligations, the Trust Agreement provides that cash in the Trust Account may be disbursed only: (i) if SPAC completes the transactions which constitute a Business Combination, then to those Persons and in such amounts as described in the SPAC Prospectus; (ii) if SPAC fails to complete a Business Combination within the allotted time period and liquidates, subject to the terms of the Trust Agreement, to SPAC in limited amounts to permit SPAC to pay the costs and expenses of its liquidation and dissolution, and then to SPAC’s public shareholders; and (iii) if SPAC holds a shareholder vote to amend SPAC’s amended and restated memorandum and articles of association to modify the substance or timing of the obligation to redeem 100% of the shares of the SPAC Common Stock if SPAC fails to complete a Business Combination within the allotted time period, then for the redemption of any shares of SPAC Common Stock properly tendered in connection with such vote. For and in consideration of SPAC entering into this Agreement, the receipt and sufficiency of which are hereby acknowledged, each Target Company hereby irrevocably waives any right, title, interest or claim of any kind it has or may have in the future in or to any monies in the Trust Account and agrees not to seek recourse against the Trust Account or any funds distributed therefrom as a result of, or arising out of, this Agreement and any negotiations, Contracts or agreements with SPAC; provided, that (x) nothing herein shall serve to limit or prohibit any Target Company’s right to pursue a claim (A) against SPAC for legal relief against monies or other assets held outside the Trust Account, (B) for specific performance or other equitable relief in connection with the consummation of the transactions (including a claim for SPAC to specifically perform its obligations under this Agreement and cause the disbursement of the balance of the cash remaining in the Trust Account (after giving effect to SPAC Share Redemptions) to the applicable Persons in accordance with the terms of this Agreement and the Trust Agreement) so long as such claim would not affect SPAC’s ability to fulfill its obligation to effectuate SPAC Share Redemptions, or (C) against SPAC for Fraud and (y) nothing herein shall serve to limit or prohibit any Action that the Target Companies may have in the future against SPAC’s assets or funds that are not held in the Trust Account (including any funds that have been released from the Trust Account and any assets that have been purchased or acquired with any such funds).

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Section 11.2          Non-Recourse. Notwithstanding anything that may be expressed or implied in this Agreement (except in the case of the immediately succeeding sentence) or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a corporation, partnership or limited liability company, each Party, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any other Ancillary Agreements or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any former, current, or future general or limited partner, manager, shareholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, shareholder, manager or member of any of the foregoing, but in each case not including the Parties (each, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, Contract or otherwise) by or on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Legal Proceeding, or by virtue of any applicable Laws, or otherwise; it being agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable Party under this Agreement or the Transactions, under any other Ancillary Agreements, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any Action (whether in tort, Contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation. Notwithstanding the foregoing, a Non-Party Affiliate may have obligations under any documents, agreements, or instruments delivered contemporaneously herewith or otherwise required by this Agreement (including the Ancillary Agreements) if such Non-Party Affiliate is party to such document, agreement or instrument. Except to the extent otherwise set forth in, and subject in all cases to the terms and conditions of any limitations herein, this Agreement may only be enforced against, and any Action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against the entities that are named as Parties and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is intended as a third-party beneficiary of this Section 11.2. This Section 11.2 shall be binding on all successors and assigns of the Parties.

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Section 11.3          Non-Survival of Representations, Warranties and Covenants. Except (x) as otherwise contemplated by Section 10.2 or (y) in the case of claims against a Person in respect of such Person’s Fraud, none of the representations, warranties, covenants, obligations or other agreements in this Agreement or in any certificate, statement or instrument delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants, obligations, agreements and other provisions, shall survive the Closing and shall terminate and expire upon the occurrence of the SPAC Merger Effective Time (in the case of representations and warranties) or Company Merger Effective Time (in the case of covenants, obligations, agreements and other provisions), as applicable (and there shall be no liability after such applicable time in respect thereof), except for (a) those covenants and agreements contained herein that by their terms expressly apply in whole or in part after such applicable time and then only with respect to any breaches occurring after such applicable time and (b) this Article XI.

Section 11.4          Waiver. Any Party to this Agreement may, to the extent not prohibited by applicable Laws, at any time prior to the Closing, by action taken by its Board of Directors, Board of Managers, Managing Member or other officers or Persons thereunto duly authorized, (a) extend the time for the performance of the obligations or acts of the other Parties, (b) waive any inaccuracies in the representations and warranties (of another Party) that are contained in this Agreement, or (c) waive compliance by the other Parties with any of the agreements or conditions contained in this Agreement, but in each case, such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party granting such extension or waiver. Delay in exercising any right under this Agreement shall not constitute a waiver of such right. In the event any provision of any of the other Ancillary Agreements in any way conflicts with the provisions of this Agreement (except where a provision therein expressly provides that it is intended to take precedence over this Agreement), this Agreement shall control.

Section 11.5          Notices. All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email (in each case in this clause (iv)), solely if receipt is confirmed, but excluding any automated reply, such as an out-of-office notification (it being understood that any email delivery effected after business hours shall be considered delivered on the next Business Day), addressed as follows:

(a)           If to SPAC or Merger Sub 1 (or, after the SPAC Merger Effective Time, to Flexjet), prior to the Closing, to:

Horizon Acquisition Corporation II 

600 Steamboat Road, Suite 200 

Greenwich, Connecticut 06830
Attention:      General Counsel

with copies to (which shall not constitute notice):

Sidley Austin LLP
One South Dearborn
Chicago, Illinois 60603
Attention:      Myles Pollin      
Email:            mpollin@sidley.com

and

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Sidley Austin LLP

2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Attention:     Bill Howell

Ryan Scofield

Email:           bhowell@sidley.com

rscofield@sidley.com

(b)          If to any of the Target Companies (or, after the Closing, Flexjet):

Epic Aero, Inc.

Cuyahoga County Airport

26180 Curtiss Wright Parkway

Cleveland, Ohio 44143

Attention:      Kenneth C. Ricci

with copies to (which shall not constitute notice):

White & Case LLP
1221 Avenue of the Americas
New York, NY 10020-1095
Attention:     Joel Rubinstein

Daniel Nussen

Matthew Kautz

Neeta Sahadev

Email:            joel.rubinstein@whitecase.com

daniel.nussen@whitecase.com

mkautz@whitecase.com

neeta.sahadev@whitecase.com

or to such other address or addresses, as the Parties may from time to time designate in writing. Copies delivered solely to outside counsel shall not constitute notice.

Section 11.6          Assignment. No Party shall assign this Agreement or any part hereof without the prior written consent of the other Parties and any such assignment without prior written consent shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

Section 11.7          Rights of Third Parties. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the Parties, any right or remedies under or by reason of this Agreement; provided, however, that (a) the D&O Indemnified Parties are intended third-party beneficiaries of, and may enforce, Section 8.7, and (b) the Non-Party Affiliates are intended third-party beneficiaries of, and may enforce, Section 11.2.

Section 11.8          Expenses. Except as otherwise set forth in this Agreement, each Party shall be responsible for and pay its own expenses incurred in connection with this Agreement, the Ancillary Agreements and the Transactions, including all fees of its legal counsel, financial advisers and accountants; provided, that, if the Closing shall occur, Flexjet shall (x) pay, or cause to be paid, all Company Transaction Expenses that are accrued and unpaid as of the Closing, and (y) pay or cause to be paid, all SPAC Transaction Expenses that are accrued and unpaid as of the Closing, in each of case (x) and (y), in accordance with Section 2.6(c).

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Section 11.9          Governing Law. This Agreement, and all Actions based upon, arising out of, or related to this Agreement or the Transactions, 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.

Section 11.10      Headings; Counterpart; Electronic Delivery. The headings in this Agreement are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of this Agreement. This Agreement 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. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence.

Section 11.11       Epic and SPAC Disclosure Letters. The Epic Disclosure Letter and SPAC Disclosure Letter (including, in each case, any section thereof) referenced herein are a part of this Agreement as if fully set forth herein. All references herein to the Epic Disclosure Letter or SPAC Disclosure Letter (including, in each case, any section thereof) shall be deemed references to such parts of this Agreement, unless the context shall otherwise require. Any disclosure made by a party in the applicable Disclosure Letter, or any section thereof, with reference to any section of this Agreement or section of the applicable Disclosure Letter shall be deemed to be a disclosure with respect to such other applicable sections of this Agreement or sections of applicable Disclosure Letter if it is reasonably apparent on the face of such disclosure that such disclosure is responsive to such other section of this Agreement or section of the applicable Disclosure Letter. Certain information set forth in the Disclosure Letters is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an (i) acknowledgment that such information is required to be disclosed in connection with the representations and warranties made in this Agreement, (ii) admission of any breach or violation of any Contract or applicable Law, or (iii) admission of any liability or obligation to any third party, nor shall such information be deemed to establish a standard of materiality. The specification of any Dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Epic Disclosure Letter or SPAC Disclosure Letter, as applicable, is not intended to imply that such amounts (or higher or lower amounts) are or are not material, and no Party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Epic Disclosure Letter or SPAC Disclosure Letter, as applicable, in any dispute or controversy between the Parties as to whether any obligation, item, or matter not described herein or included in the Epic Disclosure Letter or SPAC Disclosure Letter, as applicable, is or is not material for purposes of this Agreement. Under no circumstances shall the disclosure of any matter in the Epic Disclosure Letter or SPAC Disclosure Letter, where a representation or warranty is limited or qualified by the materiality of the matters to which the representation or warranty is given or by Epic Material Adverse Effect or SPAC Material Adverse Effect, as applicable, imply that any other undisclosed matter having a greater value or other significance is material or would have an Epic Material Adverse Effect or a SPAC Material Adverse Effect, as applicable. No Party shall be prejudiced in any manner whatsoever, and no presumptions shall be created, solely due to the disclosure of any matter in the Epic Disclosure Letter or SPAC Disclosure Letter which otherwise is not required to be disclosed by this Agreement.

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Section 11.12       Entire Agreement. This Agreement (together with the Epic Disclosure Letter, SPAC Disclosure Letter, and the Exhibits and Schedules hereto) and the Ancillary Agreements constitute the entire agreement among the parties to this Agreement relating to the Transactions and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the Parties or any of their respective Subsidiaries relating to the Transactions. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the Transactions exist between such Parties except as expressly set forth in this Agreement and the Ancillary Agreements.

Section 11.13       Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed by the Parties and which makes reference to this Agreement.

Section 11.14       Publicity. Except as otherwise expressly provided herein, during the Interim Period, (a) the Parties shall, to the extent legally permitted, reasonably consult with each other before issuing any press release or otherwise making any press release, public disclosure or public statements with respect to this Agreement, the Ancillary Agreements or the Transactions; and (b) no such press release, public disclosure or public statement shall be made unless mutually agreed upon by the Parties or required by Law or applicable stock exchange regulation.

Section 11.15        Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the Parties.

Section 11.16       Jurisdiction; Waiver of Jury Trial.

(a)            Any proceeding or Action based upon, arising out of or related to this Agreement or the Transactions must be brought in the Court of Chancery in the State of Delaware, or, if the Court of Chancery in the State of Delaware does not have jurisdiction and it has or can acquire jurisdiction, in any Federal District Court sitting in the State of Delaware (collectively, the “Designated Courts”), and each of the Parties irrevocably (i) submits to the exclusive jurisdiction of the Designated Courts in any such proceeding or Action, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the proceeding or Action shall be heard and determined only in such Designated Court, and (iv) agrees not to bring any proceeding or Action arising out of or relating to this Agreement or the Transactions in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Action, suit or proceeding brought pursuant to this Section 11.16.

(b)            EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT AND THE TRANSACTIONS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

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Section 11.17       Conflicts and Privilege.

(a)            Each of the Parties, on behalf of their respective successors and assigns (including, after the Closing, Flexjet), hereby agrees that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (x) the Sponsor, the pre-SPAC Merger shareholders or holders of other equity interests of SPAC, the shareholders or holders of other equity interests in Sponsor or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “SPAC Group”), on the one hand, and (y) the Target Companies, Flexjet or any member of the Company Group, on the other hand, any legal counsel, including, Sidley Austin LLP (“Sidley”), that represented SPAC or the Sponsor prior to the Closing may represent the Sponsor or any other member of the SPAC Group, in such dispute even though the interests of such Persons may be directly adverse to Flexjet, any other Target Company or any of their respective Subsidiaries, and even though such counsel may have represented SPAC in a matter substantially related to such dispute, or may be handling ongoing matters for Flexjet, any other Target Company, any of their respective Subsidiaries or the Sponsor or any of its Affiliates. The Parties, on behalf of their respective successors and assigns (including, after the Closing, Flexjet), further agree that, as to all communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the Transactions) between or among SPAC, the Sponsor or any member of the SPAC Group, on the one hand, and Sidley on the other hand (the “Sidley Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to the SPAC Group after the Closing, and shall not pass to or be claimed or controlled by Flexjet, any other Target Company or any of their Subsidiaries or Affiliates. The Parties, together with their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person not in the SPAC Group may use or rely on any of the Sidley Privileged Communications, whether located in the records or email server of SPAC, the Target Companies, Flexjet or their respective Subsidiaries, in any Action against or involving any of the Parties after the Closing, and the Parties, together with their respective Affiliates, Subsidiaries, successors or assigns, agree not to assert that any privilege has been waived as to the Sidley Privileged Communications, by virtue of the Mergers.

(b)            Each of the Parties, on behalf of their respective successors and assigns (including, after the Closing, Flexjet), hereby agrees that, in the event a dispute with respect to this Agreement or the Transactions arises after the Closing between or among (x) the shareholders or holders of other equity interests of Flexjet or any of the Target Companies, or any of their respective directors, members, partners, officers, employees or Affiliates (collectively, the “Company Group”), on the one hand, and (y) any member of the SPAC Group, on the other hand, any legal counsel, including White & Case LLP (“W&C”), that represented Flexjet or the Target Companies prior to the Closing may represent any member of the Company Group in such dispute even though the interests of such Persons may be directly adverse to Flexjet, the Target Companies or any of their respective Subsidiaries, and even though such counsel may have represented Flexjet, any of the Target Companies or any of their respective Subsidiaries in a matter substantially related to such dispute, or may be handling ongoing matters for Flexjet, any of the Target Companies or any of their respective Subsidiaries. The Parties, on behalf of their respective successors and assigns (including, after the Closing, Flexjet), further agree that, as to all communications prior to the Closing (made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Action arising out of or relating to, this Agreement, any Ancillary Agreements or the Transactions) between or among Flexjet, the Target Companies or any member of the Company Group, on the one hand, and W&C, on the other hand (the “W&C Privileged Communications”), the attorney/client privilege and the expectation of client confidence shall survive the Mergers and belong to the Company Group after the Closing, and shall not pass to or be claimed or controlled by Flexjet, any Target Company or any of their respective Subsidiaries or Affiliates. The Parties, together with their respective Affiliates, Subsidiaries, successors or assigns, agree that no Person not in the Company Group may use or rely on any of the W&C Privileged Communications, whether located in the records or email server of SPAC, the Target Companies, Flexjet or their respective Subsidiaries, in any Action against or involving any of the Parties after the Closing, and the Parties, together with their respective Affiliates, Subsidiaries, successors or assigns, agree not to assert that any privilege has been waived as to the W&C Privileged Communications, by virtue of the Mergers.

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Section 11.18        Other Remedies; Specific Enforcement. Except as otherwise provided herein, prior to the Closing, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each Party shall be entitled to enforce specifically the terms and provisions of this Agreement and immediate injunctive relief to prevent breaches or threatened breaches of this Agreement, without the necessity of proving the inadequacy of money damages as a remedy and without bond or other security being required, this being in addition to any other remedy to which they are entitled at law or in equity. Each of the Parties hereby acknowledges and agrees that it may be difficult to prove damages with reasonable certainty, that it may be difficult to procure suitable substitute performance, and that injunctive relief or specific performance will not cause an undue hardship to the Parties. Each of the Parties hereby further acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief. Each Party hereby further agrees that in the event of any action by any other Party for specific performance or injunctive relief, it will not assert that a remedy at law or other remedy would be adequate or that specific performance or injunctive relief in respect of such breach or violation should not be available on the grounds that money damages are adequate or any other grounds.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF the Parties caused this Agreement to be duly executed as of the date first above written.

HORIZON ACQUISITION CORPORATION II

/s/ Todd L. Boehly

Name: Todd L. Boehly

Title: Chief Executive Officer and Chairman

OTH MERGER SUB 1, LLC

/s/ Todd L. Boehly

Name: Todd L. Boehly

Title: Chief Executive Officer

Signature Page to Business Combination Agreement 

FLEXJET, INC.

/s/ Kenneth C. Ricci

Name: Kenneth C. Ricci

Title: Chairman and President

FLEXJET SUB, LLC

/s/ Kenneth C. Ricci

Name: Kenneth C. Ricci

Title: Manager

EPIC AERO, INC.

/s/ Kenneth C. Ricci

Name: Kenneth C. Ricci

Title: Chairman and President

Signature Page to Business Combination Agreement

SCHEDULE 1.1

Pre-Closing Reorganization

This Schedule 1.1 indicates the principal steps to be implemented by, or on behalf of, Epic or the Company or any of their respective Subsidiaries, as applicable, in relation to the Pre-Closing Reorganization. Capitalized terms used herein shall have the meanings assigned to such terms immediately below, and to the extent not defined below, shall have the meanings assigned to such terms in the Agreement.

Definitions

“API Distribution” means the distribution of all of Pre-Closing Acquisition Target’s equity interests in Aerospace Products International, LLC (“API”), a partially-owned subsidiary of Pre-Closing Acquisition Target, to certain of the unitholders of Pre-Closing Acquisition Target.

“Company” means a Delaware corporation to be formed in connection with the Pre-Closing Acquisition. It is currently anticipated that the initial sole stockholder of the Company will be Directional.

“Epic Charter Amendment” means the amendment to Epic’s then current certificate of incorporation (to the extent required), which amendment will provide for (i) a mechanism whereby the holders of Epic Series D-1 Preferred Stock and Epic Series D-2 Preferred Stock may consent to disparate treatment between the Epic Series D-1 Preferred Stock and Epic Series D-2 Preferred Stock, respectively, and to provide for the redemption of the Epic Series D-2 Preferred Stock in connection with the Closing (without requiring the concurrent redemption of the Epic Series D-1 Preferred Stock), (ii) a change to the redemption price per share of the Epic Series D-2 Preferred Stock and (iii) the automatic conversion of the Epic Series D-1 Shares into shares of Epic Common Stock in connection with, and immediately prior to, the Closing.

“Merger Sub 3” means a Delaware corporation to be formed in connection with the Pre-Closing Acquisition, which shall initially be a wholly-owned subsidiary of the Company.

“Pre-Closing Acquisition” means a series of related transactions whereby (i) unitholders of Pre-Closing Acquisition Target (excluding Epic) will contribute their units of Pre-Closing Acquisition Target to the Company in exchange for Company Common Stock (which contribution may be effected via a merger of Pre-Closing Acquisition Target with a wholly-owned subsidiary of the Company with either Pre-Closing Acquisition Target or such subsidiary surviving as a subsidiary of the Company and the pre-merger unitholders of Pre-Closing Acquisition Target (excluding Epic) receiving shares of Company Common Stock), and (ii) Merger Sub 3 will merge with and into Epic, with Epic surviving such merger as a wholly-owned subsidiary of the Company. As a result of such merger, (x) the holders of Epic Common Stock will receive Company Common Stock and (y) the holders of shares of Epic Series D-1 Preferred Stock and Epic Series D-2 Preferred Stock will receive equivalent preferred interests in the Company in exchange for their shares of Epic Series D-1 Preferred Stock and Epic Series D-2 Preferred Stock (such interests, the “Series D-1 Shares” and the “Series D-2 Shares”, respectively). Following the foregoing transactions, the Company will contribute all of its interests in Pre-Closing Acquisition Target to Epic such that Pre-Closing Acquisition Target will become a wholly-owned subsidiary of Epic.

“Pre-Closing Acquisition Target” means Fairgrave Omlie, LLC, an Ohio limited liability company.

“Pre-Closing Divestiture” means a series of transactions whereby each of (i) Tuvoli, LLC (“Tuvoli”), a Delaware limited liability company and partially-owned subsidiary of Epic, and (ii) 4AIR, LLC, a Delaware limited liability company and partially-owned subsidiary of Epic (“4AIR”), will be divested out of the Epic corporate structure such that neither the Company nor Epic shall hold any interests in Tuvoli or 4AIR following such divestiture.

“Series D-2 Redemption” means the redemption by the Company of the Series D-2 Shares for a price per share as set forth in the Company’s Organizational Documents and an aggregate amount equal to the Secondary Proceeds, payment of which redemption consideration shall be made contingent upon, and immediately following, the Closing.

Schedule 1.1 to Business Combination Agreement

Pre-Closing Reorganization

The following transactions constitute the Pre-Closing Reorganization; provided, that such transactions and events may not necessarily occur in the order provided below unless specifically contemplated to occur in a particular order in the Agreement. Subject to Section 6.6 of the Agreement, each of Epic, the Company, and their respective Subsidiaries, shall be authorized to take all such action and to negotiate, execute, file and deliver any and all such certificates, instruments, agreements and other documents, as they or any of them considers necessary, appropriate or convenient to carry into effect the purposes and intent of any and all of the following:

1. The API Distribution.

2. The Company will be incorporated and organized. The Organizational Documents of the Company will provide for, among other things, (i) a mechanism whereby the Series D-2 Shares may be redeemed (without requiring a concurrent redemption of the Series D-1 Shares) to provide for the Series D-2 Redemption in connection with and immediately prior to the Closing, (ii) a redemption price per share of the Series D-2 Shares that, in the aggregate, equals $80.5 million, and (iii) the automatic conversion of the Series D-1 Shares into shares of Company Common Stock on a one for one basis in connection with and immediately prior to the Closing.

3. Upon the incorporation of the Company, Merger Sub 3 will be incorporated and organized.

4. The Pre-Closing Acquisition. Following the Pre-Closing Acquisition, the Company shall execute a joinder agreement to become a Party to the Agreement and will cause the Epic Options to become the Company Options.

5. The Pre-Closing Divestiture.

6. If required, Epic shall file the Epic Charter Amendment with the Secretary of State of the State of Delaware.

7. The Series D-2 Redemption.

2

SCHEDULE 1.2

Certain Payments

An amount up to an aggregate of $16,150,000.00 with allocations to individuals to be agreed by the Epic board of directors.

Schedule 1.2 to Business Combination Agreement

SCHEDULE 6.11

Required Actions

Capitalized terms used but not defined in this Schedule 6.11 have the meanings assigned to such terms in the Agreement.

The Target Companies shall use commercially reasonable efforts to take such Required Actions as are necessary and advisable to ensure that Volare Acquisitions, Limited and each Subsidiary of Epic that holds an air operator certificate and that is not directly or indirectly wholly-owned by Epic (each, a “Regulated Sub”), has the following structural protections (the “Regulated Sub Provisions”) in place effective as of the Closing:

(a)            the equity or voting interest of a Regulated Sub held by an individual or entity not wholly-owned, directly or indirectly, by Epic (any such individual or entity, a “Specified Holder” and any such equity or voting interest, a “Specified Equity Interest”) may not be sold, transferred or otherwise disposed of, except as approved by Flexjet’s Board of Directors; and

(b)            if a Specified Holder is an officer, director or employee of Flexjet or any of its Subsidiaries, upon termination of such Specified Holder’s status as an officer, director or employee of Flexjet and its Subsidiaries for any reason, including death, disability, resignation or removal, Flexjet shall have the right to cause such Specified Holder (including, for this purpose, such Specified Holder’s estate, personal representative, administrator and other similar Persons) promptly to transfer such Specified Equity Interest to one or more other persons, or to be diluted as shall be necessary or advisable, for no consideration (other than such consideration as may be set forth in a services agreement existing as of the date of this Agreement between such Specified Holder and the Regulated Sub) to facilitate compliance with citizenship or other requirements under applicable Aviation Laws in such manner and on such timeline as is directed by Flexjet’s Board of Directors.

The Required Actions shall include using commercially reasonable efforts to enter into, or cause to be amended, terminated or entered into, agreements or arrangement that are reasonably necessary to implement the Regulated Sub Provisions. In addition, SPAC and the Target Companies may, in lieu of or in addition to the items described above, mutually agree to such other protections or arrangements that, taking into account applicable Laws, reasonably accomplish the purposes of the Regulated Sub Provisions described above.

Schedule 6.11 to Business Combination Agreement

EXHIBIT A

Form of Second Amended and Restated Flexjet Charter

See attached.

Exhibit A to Business Combination Agreement

EXHIBIT B

Form of Second Amended and Restated Flexjet Bylaws

See attached.

Exhibit B to Business Combination Agreement

EXHIBIT C

Form of Registration Rights Agreement

See attached.

Exhibit C to Business Combination Agreement

EXHIBIT D

Form of Stockholders Agreement

See attached.

Exhibit D to Business Combination Agreement

EXHIBIT E

Form of Incentive Equity Plan

See attached.

Exhibit E to Business Combination Agreement

EXHIBIT F

Form of Flexjet New Warrant Agreement

See attached.

Exhibit F to Business Combination Agreement

EXHIBIT G

Form of Warrant Assumption Agreement

See attached.

Exhibit G to Business Combination Agreement

EX-10.1

Exhibit 10.1

EXCHANGE AGREEMENT

THIS EXCHANGE AGREEMENT (this “Agreement”) is made and entered into as of October 11, 2022, by and among Flexjet, Inc., a Delaware corporation (“Flexjet”), Horizon II Sponsor, LLC, a Delaware limited liability company (“Sponsor”), and Directional Capital LLC, a Delaware limited liability company (“Directional”).

WHEREAS, reference is hereby made to that certain Business Combination Agreement, dated as of the date hereof (as may be amended, restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among Flexjet, Horizon Acquisition Corporation II, a Cayman Islands exempted company (“SPAC”), Epic Aero, Inc., a Delaware corporation (“Epic”), OTH Merger Sub 1, a Delaware limited liability company and wholly owned subsidiary of SPAC (“Merger Sub 1”), Flexjet Sub, LLC, a Delaware limited liability company and wholly owned subsidiary of Flexjet (“Merger Sub 2”), pursuant to which, among other things, (i) SPAC will merge with and into Merger Sub 2 with Merger Sub 2 surviving such merger as a direct, wholly owned subsidiary of Flexjet (the “SPAC Merger”), and (ii) Merger Sub 1 will merge with and into a Delaware corporation that will be formed prior to the Closing (the “Combined TargetCo”), with Combined TargetCo surviving such merger as an indirect, wholly owned subsidiary of FlexJet (the “Company Merger”);

WHEREAS, capitalized terms used but not defined in this Agreement have the meanings given to such terms in the Business Combination Agreement;

WHEREAS, in connection with the SPAC Merger, each issued and outstanding Class A ordinary share, par value $0.0001 per share, of SPAC (“Class A Ordinary Share”) shall convert into one share of Class A common stock, par value $0.0001 per share, of Flexjet (“Class A Common Stock”), and each issued and outstanding Class B ordinary share, par value $0.0001 per share, of SPAC (“Class B Ordinary Share”) shall convert into one share of Class B common stock, par value $0.0001 per share, of Flexjet (“Class B Common Stock”); and

WHEREAS, in connection with the transactions contemplated by the Business Combination Agreement (the “Business Combination”), following the SPAC Merger and effective on the Closing Date but prior to the Company Merger Effective Time and adoption of the Second Amended and Restated Flexjet Charter, Sponsor desires to irrevocably assign, transfer and tender to Flexjet, 13,125,000 shares of Class B Common Stock received by Sponsor in the SPAC Merger (the “Tendered Shares”) for cancellation on the terms and subject to the conditions set forth in this Agreement. In connection therewith, and on the terms and subject to the conditions set forth in this Agreement, Flexjet shall issue the following: (i) 20,000,000 warrants to purchase shares of Class A Common Stock at an exercise price of $10.00 per share (the “New $10.00 Exercise Warrants”), of which 10,000,000 New $10.00 Exercise Warrants will be issued to Sponsor and 10,000,000 New $10.00 Exercise Warrants will be issued to Directional; (ii) 20,000,000 warrants to purchase shares of Class A Common Stock at an exercise price of $15.00 per share (the “New $15.00 Exercise Warrants” and, together with the New $10.00 Exercise Warrants, the “New Warrants”), of which 10,000,000 New $15.00 Exercise Warrants will be issued to Sponsor and 10,000,000 New $15.00 Exercise Warrants will be issued to Directional; and (iii) 50,000 shares of Class A Common Stock (the “New Class A Shares” and, together with the New Warrants, the “New Securities”), of which 25,000 New Class A Shares will be issued to Sponsor and 25,000 New Class A Shares will be issued to Directional (clauses (i), (ii) and (iii), collectively, the “Issuances”).

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:

Section 1.                Tender of Shares. Subject to the terms and conditions set forth herein, Sponsor hereby agrees to irrevocably assign, transfer and tender (the “Tender”) to Flexjet for cancellation, free and clear of all liens, all of the Tendered Shares immediately prior to the Issuances.

Section 2.Issuances. Subject to the terms and conditions set forth herein and in the Business Combination Agreement, and contingent upon the Tender, immediately following the Tender, Flexjet hereby agrees to issue to each of Sponsor and Directional, and each of Sponsor and Directional hereby agrees to accept from Flexjet, (a) 10,000,000 of the New $10.00 Exercise Warrants, (b) 10,000,000 of the New $15.00 Exercise Warrants and (c) 25,000 of the New Class A Shares. Each New $10.00 Exercise Warrant and each New $15.00 Exercise Warrant shall be subject to the terms of the new warrant agreement, to be entered into by and among Flexjet and Continental Stock Transfer & Trust Company, as warrant agent as contemplated by the Business Combination Agreement (the “New Warrant Agreement”).

Section 3.Closing.

(a)The closing of the Tender and Issuances shall take place on the Closing Date but prior to the Company Merger Effective Time and adoption of the Second Amended and Restated Flexjet Charter.

(b)Each party hereto shall deliver to each other party hereto any duly executed instruments, certificates or other agreements to the extent necessary or reasonably requested by any such other party to effect the Tender or the Issuances, in each case, in form reasonably satisfactory to the requesting party.

Section 4.Representations, Warranties and Agreements.

(a)Sponsor’s Representations, Warranties and Agreements. To induce Flexjet to issue the New Securities to Sponsor, Sponsor hereby represents and warrants to Flexjet as follows:

(i)No Government Recommendation or Approval. Sponsor understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the New Securities.

(ii)No Conflicts. The execution, delivery and performance of this Agreement and the consummation by Sponsor of the transactions contemplated hereby do not violate, conflict with or constitute a default under (A) the limited liability company agreement of Sponsor, (B) any agreement, indenture or instrument to which Sponsor is a party or (C) any law, statute, rule or regulation to which Sponsor is subject, or any agreement, order, judgment or decree to which Sponsor is subject.

(iii)Registration and Authority. Sponsor is a Delaware limited liability company, validly existing and possessing all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by the parties hereto, this Agreement will be a legal, valid and binding agreement of Sponsor, enforceable against Sponsor in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(iv)Experience, Financial Capability and Suitability. Sponsor is: (A) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the New Securities and (B) able to bear the economic risk of its investment in the New Securities for an indefinite period of time because the New Securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. Sponsor is capable of evaluating the merits and risks of its investment in Flexjet and has the capacity to protect its own interests. Sponsor must bear the economic risk of this investment until the New Securities are sold pursuant to: (A) an effective registration statement under the Securities Act or (B) an exemption from registration available with respect to such sale. Sponsor is able to bear the economic risks of an investment in the New Securities and to afford a complete loss of Sponsor’s investment in the New Securities.

(v)Access to Information; Independent Investigation. Prior to the execution of this Agreement, Sponsor has had the opportunity to ask questions of and receive answers from representatives of Flexjet concerning an investment in Flexjet, as well as the finances, operations, business and prospects of Flexjet, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, Sponsor has relied solely on Sponsor’s own knowledge and understanding of Flexjet and its business based upon Sponsor’s own due diligence investigation and the information furnished pursuant to this paragraph. Sponsor understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 4 and Sponsor has not relied on any other representations or information in making its investment decision, whether written or oral, relating to Flexjet, its operations or its prospects.

(vi)Accredited Investor. Sponsor represents that it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act and acknowledges that the Issuances are being made in reliance on a private placement exemption under the Securities Act.

(vii)Investment Purposes. Sponsor is acquiring the New Securities solely for investment purposes, for Sponsor’s own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. Sponsor did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act.

(viii)Restrictions on Transfer; Shell Company. Sponsor understands the New Securities are being offered in a transaction not involving a public offering within the meaning of the Securities Act. Sponsor understands the New Securities will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, and Sponsor understands that any certificates or book-entries representing the New Securities will contain a legend in respect of such restrictions. If in the future Sponsor decides to offer, resell, pledge or otherwise transfer the New Securities, such New Securities may be offered, resold, pledged or otherwise transferred only pursuant to: (A) registration under the Securities Act, or (B) an available exemption from registration. Sponsor agrees that if any transfer of its New Securities or any interest therein is proposed to be made, as a condition precedent to any such transfer, Sponsor may be required to deliver to Flexjet an opinion of counsel satisfactory to Flexjet. Absent registration or an exemption, Sponsor agrees not to resell the New Securities. Sponsor further acknowledges that because Flexjet is consummating an initial business combination involving SPAC, which is a shell company, Rule 144 may not be available to Sponsor for the resale of the New Securities until one year following the filing of certain required information after the consummation of the initial business combination of SPAC, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.

(ix)No Governmental Consents. No governmental, administrative or other third party consents or approvals are required or necessary on the part of Sponsor in connection with the transactions contemplated by this Agreement.

(x)Title to Tendered Shares; Certificates. Following the SPAC Merger, the Tendered Shares will represent all of the issued and outstanding shares of Class B Common Stock of Flexjet. Sponsor has good and valid title to the Class B Ordinary Shares and, following the SPAC Merger, will have good and valid title to the Tendered Shares, free and clear of any liens, claims and encumbrances of any kind, other than transfer restrictions under federal and state securities laws and the Organizational Documents of SPAC or Flexjet, as applicable.

(b)Directional’s Representations, Warranties and Agreements. To induce Flexjet to issue the New Securities to Directional, Directional hereby represents and warrants to Flexjet as follows:

(i)No Government Recommendation or Approval. Directional understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the New Securities.

(ii)No Conflicts. The execution, delivery and performance of this Agreement and the consummation by Directional of the transactions contemplated hereby do not violate, conflict with or constitute a default under (A) the limited liability company agreement of Directional, (B) any agreement, indenture or instrument to which Directional is a party or (C) any law, statute, rule or regulation to which Directional is subject, or any agreement, order, judgment or decree to which Directional is subject.

(iii)Registration and Authority. Directional is a Delaware limited liability company, validly existing and possessing all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by the parties hereto, this Agreement will be a legal, valid and binding agreement of Directional, enforceable against Directional in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(iv)Experience, Financial Capability and Suitability. Directional is: (A) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the New Securities and (B) able to bear the economic risk of its investment in the New Securities for an indefinite period of time because the New Securities have not been registered under the Securities Act and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. Directional is capable of evaluating the merits and risks of its investment in Flexjet and has the capacity to protect its own interests. Directional must bear the economic risk of this investment until the New Securities are sold pursuant to: (A) an effective registration statement under the Securities Act or (B) an exemption from registration available with respect to such sale. Directional is able to bear the economic risks of an investment in the New Securities and to afford a complete loss of Directional’s investment in the New Securities.

(v)Access to Information; Independent Investigation. Prior to the execution of this Agreement, Directional has had the opportunity to ask questions of and receive answers from representatives of Flexjet concerning an investment in Flexjet, as well as the finances, operations, business and prospects of Flexjet, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, Directional has relied solely on Directional’s own knowledge and understanding of Flexjet and its business based upon Directional’s own due diligence investigation and the information furnished pursuant to this paragraph. Directional understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 4 and Directional has not relied on any other representations or information in making its investment decision, whether written or oral, relating to Flexjet, its operations or its prospects.

(vi)Accredited Investor. Directional represents that it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act and acknowledges that the Issuances are being made in reliance on a private placement exemption under the Securities Act.

(vii)Investment Purposes. Directional is acquiring the New Securities solely for investment purposes, for Directional’s own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. Directional did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 under the Securities Act.

(viii)Restrictions on Transfer; Shell Company. Directional understands the New Securities are being offered in a transaction not involving a public offering within the meaning of the Securities Act. Directional understands the New Securities will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, and Directional understands that any certificates or book-entries representing the New Securities will contain a legend in respect of such restrictions. If in the future Directional decides to offer, resell, pledge or otherwise transfer the New Securities, such New Securities may be offered, resold, pledged or otherwise transferred only pursuant to: (A) registration under the Securities Act, or (B) an available exemption from registration. Directional agrees that if any transfer of its New Securities or any interest therein is proposed to be made, as a condition precedent to any such transfer, Directional may be required to deliver to Flexjet an opinion of counsel satisfactory to Flexjet. Absent registration or an exemption, Directional agrees not to resell the New Securities. Directional further acknowledges that because Flexjet is consummating an initial business combination with SPAC, which is a shell company, Rule 144 may not be available to Directional for the resale of the New Securities until one year following the filing of certain required information after the consummation of the initial business combination of SPAC, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.

(ix)No Governmental Consents. No governmental, administrative or other third party consents or approvals are required or necessary on the part of Directional in connection with the transactions contemplated by this Agreement.

(c) Flexjet’s Representations, Warranties and Agreements. To induce Sponsor and Directional to accept the New Securities, Flexjet hereby represents and warrants to Sponsor and Directional as follows:

(i)Incorporation and Corporate Power. Flexjet is a Delaware corporation and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of Flexjet. Flexjet possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by the parties hereto, this Agreement will be a legal, valid and binding agreement of Flexjet, enforceable against Flexjet in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(ii)No Conflicts. The execution, delivery and performance of this Agreement and the consummation by Flexjet of the transactions contemplated hereby do not violate, conflict with or constitute a default under (A) the Organizational Documents of Flexjet, (B) any agreement, indenture or instrument to which Flexjet is a party or (C) any law, statute, rule or regulation to which Flexjet is subject, or any agreement, order, judgment or decree to which Flexjet is subject.

(iii)Title to Securities. Upon completion of the SPAC Merger, the New Class A Shares will be duly authorized and, when issued and delivered to Sponsor and Directional in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable. Upon completion of the SPAC Merger, the New Warrants, when issued and delivered in the manner set forth in the New Warrant Agreement in accordance with the terms of this Agreement, will be duly executed, authenticated, issued and delivered, and will constitute valid and binding obligations of Flexjet, enforceable against Flexjet in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally from time to time in effect and by equitable principles of general applicability. Upon issuance in accordance with, and payment pursuant to, the terms hereof, Sponsor and Directional will have or receive good and valid title to the New Securities, free and clear of all liens, claims and encumbrances of any kind, other than (A) transfer restrictions hereunder and other agreements to which the New Securities may be subject, (B) transfer restrictions under federal and state securities laws and the Organizational Documents of Flexjet, and (C) liens, claims or encumbrances imposed due to the actions of Sponsor or Directional (as applicable).

(iv)No Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting Flexjet which: (A) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement or (B) question the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection with any transactions.

Section 5.Intended Tax Treatment. Each of the parties hereto intends that, for U.S. federal income tax purposes (and for purposes of any applicable state or local income tax that follows the U.S. federal income tax treatment), (i) the issuance of New Securities to Directional be considered part of an overall transaction that is integrated with the Company Merger such that such New Securities are considered issued to Directional in exchange for a portion of Directional’s interest in the Combined TargetCo as part of the Company Merger, (ii) the Company Merger Intended Tax Treatment applies to such Issuances as if Directional had received such New Securities in the Company Merger, (iii) Sponsor’s assignment, transfer and tender of the Tendered Shares and, in connection therewith, Sponsor’s receipt of the New Warrants and New Securities, together, shall qualify for the Exchange Intended Tax Treatment, and (iv) this Agreement constitute a part of a “plan of reorganization” for purposes of Sections 354, 361 and the 368 of the Code and within the meaning of Treasury Regulations Section 1.368-2(g).

Section 6.Miscellaneous.

(a)Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties.

(b)Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three Business Days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:

(i)If to Sponsor, to:

600 Steamboat Road, Suite 200
Greenwich, CT 06830
Attention: General Counsel

with a required copy to (which copy shall not constitute notice):

Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Email:              mpollin@sidley.com
Attention:      Myles Pollin

and

Sidley Austin LLP
2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201
Email:             bhowell@sidley.com

rscofield@sidley.com

Attention:      Bill Howell

Ryan Scofield

(ii)If to Directional, to:

355 Richmond Road

Cleveland, Ohio 44143

Attention: Kenneth C. Ricci

with a required copy to (which copy shall not constitute notice):

355 Richmond Road

Cleveland, Ohio 44143

Attention: Debra Perelman, Esq.

(iii)If to Flexjet, to:

26180 Curtiss Wright Pkwy

Cleveland, OH 44143
Attention: Kenneth C. Ricci

with a required copy to (which copy shall not constitute notice):

White & Case LLP
1221 Avenue of the Americas
New York, NY 10020-1095
Attention:             Joel Rubinstein

Daniel Nussen

Matthew Kautz

Neeta Sahadev

Email:                    joel.rubinstein@whitecase.com

daniel.nussen@whitecase.com

mkautz@whitecase.com

neeta.sahadev@whitecase.com

(c)Counterparts. This Agreement may be executed and delivered in counterparts (including by facsimile or electronic transmission), each of which shall constitute an original, and all of which when taken together shall constitute one and the same agreement.

(d)Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by the parties hereto.

(e)Assignment and Successors. Neither this Agreement nor any rights, interests or obligations hereunder may be assigned without the prior written consent of the non-assigning parties hereto. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

(f)Miscellaneous. Sections 1.2 (Construction); 11.1 (Trust Account Waiver), 11.9 (Governing Law), 11.15 (Severability), 11.16 (Jurisdiction; Waiver of Jury Trial) and 11.18 (Other Remedies; Specific Enforcement) of the Business Combination Agreement are incorporated by reference herein and shall apply hereto mutatis mutandis.

* * * * *

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.

FLEXJET:
Flexjet, Inc.
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	Chairman and President
SPONSOR:
HORIZON II SPONSOR, LLC
By:	/s/ Todd L. Boehly
Name:	Todd L. Boehly
Title:	Chief Executive Officer

Signature Page to Exchange Agreement 

DIRECTIONAL:
Directional Capital LLC
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	Manager

Signature Page to Exchange Agreement 

EX-10.2

Exhibit 10.2

NEW WARRANT AGREEMENT

THIS NEW WARRANT AGREEMENT (this “Agreement”), dated as of [●], 2023, is made and entered into between Flexjet, Inc., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (in such capacity, the “Warrant Agent”).

Certain terms used herein are defined in Section 8.10, if not defined elsewhere herein.

RECITALS

WHEREAS, the warrants issued hereunder are referred to herein as the “Warrants,” and will be initially issued to Directional and Sponsor as specified in the BCA and the Exchange Agreement. In each case, the Warrants will be issued in two Tranches;

WHEREAS, the Company wants to provide for (i) the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, the respective rights, limitation of rights and immunities of the Company, the Warrant Agent and the holders of the Warrants and (ii) certain other matters; and

WHEREAS, all acts and things have been done and performed that are necessary (i) to make the Warrants, as provided herein, the valid, binding and legal obligations of the Company (subject, in the case of Physical Warrant Certificates (as defined below), if Physical Warrant Certificates are issued, to their being executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent) and (ii) to authorize the execution and delivery of this Agreement;

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:

1.Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in relation to the Warrants in accordance with the terms and conditions of this Agreement. The Warrant Agent hereby accepts such appointment and agrees to perform as such agent in accordance with the terms and conditions set forth in this Agreement.

2.Warrants.

2.1Definition of “Common Stock”; Initial Issuance of Warrants; Certain Terms of the Warrants.

(a)“Common Stock” means initially the shares of common stock, par value $0.0001 per share, of the Company, until other securities become Common Stock pursuant to this Agreement. As the context requires, the term means the securities of that class or the securities deliverable upon exercise of the Warrants.

(b)Each Warrant shall entitle the holder thereof, upon the exercise thereof pursuant to this Agreement, to delivery of Common Stock, upon the terms and subject to the conditions of this Agreement.

(c) As contemplated by the BCA and Exchange Agreement, at or about the Company Merger Effective Time (as defined in the BCA), the Warrants shall be initially issued in two tranches (“Tranches”), consisting of “Tranche 1” and “Tranche 2”. The two Tranches shall be identical, except as to Exercise Price (as defined below), as provided in Section 2.1(e).

(d)Warrants of each Tranche shall be initially issued as follows (expressed as the number of shares of Common Stock initially deliverable upon exercise of such Warrants) to the following holders:

Holder/Total	Tranche 1	Tranche 2	Total
Directional	10,000,000	10,000,000	20,000,000
Sponsor	10,000,000	10,000,000	20,000,000
Total	20,000,000	20,000,000	40,000,000

Each number of shares of Common Stock set forth above is subject to adjustment pursuant to this Agreement.

(e)The exercise price of the Warrants per Warrant Share (the “Exercise Price”) shall be:

· For Tranche 1: $10.00.

· For Tranche 2: $15.00.

Each such Exercise Price is subject to adjustment pursuant to this Agreement.

(f)The period during which the Warrants can be exercised (the “Exercise Period”) shall begin on the date hereof and end at 5:00 p.m. New York City time on the 10th anniversary of the date of the Company Merger Effective Time, or, if such anniversary date is not a Business Day, on the next Business Day.

(g)No Warrant shall be redeemable at the option of the Company or the holder thereof or otherwise.

2.2Form of Warrant. Each Warrant shall initially be issued in book-entry form only. Physical certificates representing the Warrants (“Physical Warrant Certificates”) shall be issued only as provided in Section 2.4.2.

2.3Effect of Countersignature on Physical Warrant Certificates. If a Physical Warrant Certificate is issued, unless and until it is countersigned by the Warrant Agent pursuant to this Agreement, it shall be invalid and of no effect and may not be exercised by the holder thereof.

2.4 Registration.

2.4.1Warrant Register; Issuance and Registration of Warrants.

(a)The Warrant Agent shall maintain books (the “Warrant Register”) for the registration of original issuance, exercise and transfer of the Warrants. The Warrant Register shall also reflect any notations as to restrictions on transfer that may be applicable to any Warrant.

(b)Upon the initial issuance of the Warrants in book-entry form, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.

(c)Section 2.4.1(d), and all other provisions herein relating to the Depositary and any Participant (each as defined in Section 2.4.1(d)), shall apply only if the Warrants are accepted for deposit by the Depositary, which is not expected to happen in any circumstance. Warrants so accepted are referred to herein as “Depositary Warrants”. Warrants in book-entry form that are not Depositary Warrants are referred to herein as “Direct Book-Entry Warrants”.

(d)Ownership of beneficial interests in the Depositary Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with The Depository Trust Company (the “Depositary”) (such institution, with respect to a Depositary Warrant in its account, a “Participant”).

(e)Ownership of beneficial interests in the Direct Book-Entry Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by the Warrant Agent, including the Warrant Register.

2.4.2Cessation of Book-Entry Form; Physical Warrant Certificates.

(a)This Section 2.4.2 shall apply if (i) in the case of Direct Book-Entry Warrants, the Warrant Agent ceases to make its book-entry system available for the Warrants, or (ii) in the case of Depositary Warrants, the Depositary ceases to make its book-entry settlement system available for the Warrants.

(b)In either case contemplated by Section 2.4.2(a):

(i)the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement; and

(ii)the Company shall provide written instructions to the Warrant Agent (in the case of Direct Book-Entry Warrants) or the Depositary (in the case of Depositary Warrants) (A) to cancel the book-entry status of the Warrants, and (B) to deliver Physical Warrant Certificates to the Registered Holders.

(c)In addition to either case contemplated by Section 2.4.2(a), a Registered Holder of a Warrant in book-entry form shall have the right to request that it be represented, in whole or in part, in physical form. In such case, and to the extent requested, the Company shall provide written instructions to the Warrant Agent (in the case of Direct Book-Entry Warrants) or the Depositary (in the case of Depositary Warrants) (i) to cancel the book-entry status of such Warrant and (ii) to deliver Physical Warrant Certificates to such Registered Holder.

(d)Physical Warrant Certificates shall be in the form of Exhibit A hereto, properly completed and with such changes as may be acceptable to the Company and the Depositary to reflect administrative ease and custom.

(e)Physical Warrant Certificates shall be signed by, or bear the facsimile signature of, the Chairman of the Board, Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, General Counsel, Secretary or other principal officer of the Company, in each case satisfying such requirements relating to the jurisdiction of organization of the Company as shall be applicable. If the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.

2.4.3Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder” or the “holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on a Physical Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.

2.5Fractional Warrants. The Company shall not issue fractional Warrants.

2.6Restrictions on Transfer. The Warrants and the Common Stock are subject to the applicable restrictions on transfer set forth in the Stockholders Agreement (as defined in the BCA) and the Bylaws of the Company.

In the case of a Warrant in book-entry form, by notice to the Warrant Agent, the Company may require the Warrant Agent to reflect in the Warrant Register any appropriate notation as to restriction on transfer that may be applicable to such Warrant. By notice to the Warrant Agent, the Company shall require the Warrant Agent to reflect in the Warrant Register the removal of any such notation when any such restriction is no longer applicable to a Warrant. If any holder of any Warrant is affected by any notice given pursuant to either of the preceding sentences, the Company shall concurrently provide a copy of such notice to such holder.

In the case of any Warrant represented by a Physical Warrant Certificate, by notice to the Warrant Agent and the holder, the Company may require the Warrant Agent to include any appropriate legend on such Physical Warrant Certificate to reflect any restrictions on transfer that may be applicable to such Warrant. By notice to the Warrant Agent and the holder, the Company shall promptly cause any such legend to be removed when any such restriction is no longer applicable to such Warrant.

3. Exercise and Duration of Warrants.

3.1Exercise in General; Reduction of Exercise Price. Each Warrant shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated in the Warrant Register with respect thereto, at the applicable Exercise Price, subject to the adjustments provided in Section 4 hereof and in the next sentence. The Company in its sole discretion may lower the Exercise Price applicable to the Warrants of a Tranche at any time prior to the end of the Exercise Period (the “Expiration Date”) for a period of not less than 15 Business Days (unless otherwise required by the Commission, any national securities exchange on which the Warrants are listed or applicable law). The Company shall provide at least three Business Days’ prior written notice of such reduction to Registered Holders of the Warrants of such Tranche. Any such reduction shall be identical among all the Warrants of such Tranche.

3.2Duration of Warrants. A Warrant may be exercised only during the Exercise Period. Each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants of a Tranche by delaying the Expiration Date, in which case (i) the Company shall provide at least 20 days’ prior written notice of any such extension to Registered Holders of the Warrants of such Tranche, and (ii) any such extension shall be identical in duration among all the Warrants of such Tranche.

3.3Exercise of Warrants.

3.3.1General. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by taking the following actions:

(a)If the Warrant is in book-entry form, the holder shall deliver to the Warrant Agent acting on behalf of the Company, at its corporate trust department, such exercise documentation as shall be required by the then-current procedures of the Warrant Agent and, in the case of a Depositary Warrant, the Depositary.

(b)If the Warrant is represented by a Physical Warrant Certificate, the Registered Holder shall deliver to the Warrant Agent, acting on behalf of the Company, at its corporate trust department, (A) such Physical Warrant Certificate, (B) an election to purchase (an “Election to Purchase”) in the form specified in the Physical Warrant Certificate or otherwise acceptable to the Warrant Agent, properly completed and signed, and (C) such other exercise documentation as shall be required by the then-current procedures of the Warrant Agent.

(c)The Registered Holder shall pay or cause to be paid in full the Exercise Price for each Warrant Share as to which the Warrant is exercised, as required by Section 3.3.2, except to the extent that Cashless Basis Exercise (as defined below) applies pursuant to Section 3.3.3.

3.3.2Payment of Exercise Price. Except to the extent that Cashless Basis Exercise applies pursuant to Section 3.3.3, the holder shall pay or cause to be paid in full the Exercise Price per Warrant as to which an exercise relates in lawful money of the United States, by good certified check or good bank draft payable to the order of the Warrant Agent or by wire transfer of immediately available funds to the Warrant Agent. The Warrant Agent shall cause the amount of any such payment made to it to be credited to a bank account in the name of the Company or its designee as designated by the Company. Following the issuance of such Common Stock, the Warrant Agent shall cause evidence of the related exercise of the Warrants to be delivered to the Company, and the Company shall take all steps necessary and advisable to register the Common Stock in the competent commercial register according to applicable law and the Company’s organization documents.

3.3.3Cashless Basis Exercise. The holder of a Warrant shall have the right to exercise such Warrant on a cashless basis (“Cashless Basis Exercise”), as follows: If the holder of a Warrant elects Cashless Basis Exercise with respect to the exercise of such Warrant, the holder shall surrender such Warrant without payment of any cash Exercise Price, and the number of shares of Common Stock deliverable upon such exercise shall equal:

WS * (EMV / MV)

where:

EMV = the greater of (x) $0 and (y) (MV – EP)

MV = the average last reported sale price of the shares of Common Stock for the 10 trading days ending on the third trading day prior to the date on which notice of exercise of such Warrant is given to the Warrant Agent

EP = the Exercise Price of such Warrant

WS = the full number of shares of Common Stock deliverable upon exercise of such Warrant (on a hypothetical full cash exercise basis)

3.3.4Issuance of Common Stock on Exercise; Common Stock Register. As soon as practicable, but in any event within five Business Days, after the exercise of any Warrant and the clearing of the funds in payment of the Exercise Price (except to the extent of Cashless Basis Exercise), the Company shall issue to the Registered Holder of such Warrant:

(a)a book-entry position or Physical Warrant Certificate, as applicable, for the number of shares of Common Stock to which such Registered Holder is entitled, registered in such name or names as may be directed by such Registered Holder on the register of holders of Common Stock or a similar register maintained by or on behalf of the Company (the “Common Stock Register”); and

(b)if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares of Common Stock as to which such Warrant shall not have been exercised.

(c)A Registered Holder of Warrants may exercise its Warrants only for a whole number of shares of Common Stock. If, by reason of any exercise of Warrants on a Cashless Basis Exercise, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a Warrant Share, the Company shall round down, to the nearest whole number, the number of shares of Common Stock to be issued to such holder.

3.3.5Valid Issuance. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid, and, if relevant to the jurisdiction of organization, nonassessable.

3.3.6Date of Issuance of Common Stock. Each person in whose name any book-entry position or certificate, as applicable, for Common Stock is issued and who is registered in the Common Stock Register shall for all purposes be deemed to have become the holder of record of such Common Stock on:

(a)the date on which the Common Stock was issued or

(b)to the extent not prohibited by applicable law, the earlier date (the “relevant date”) on which the book-entry position or Physical Warrant Certificate representing such Warrant was delivered and payment of the Exercise Price or relevant portion thereof was made, except that, if such relevant date is not a Business Day or is a day on which the Warrant Share Register or such book-entry system, as applicable, is closed, the relevant date instead shall be the next Business Day on which it is open.

4.Adjustments.

4.1Share Capitalizations.

4.1.1Share Dividends, Sub-Divisions, Etc. Subject to Section 4.4, if, after the date hereof, the number of issued and outstanding shares of Common Stock is increased by a capitalization or share dividend of Common Stock (including Common Stock held in treasury), or by a sub-division of Common Stock or other similar event, then, on the effective date of such share capitalization, sub-division or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding Common Stock.

A rights offering to all holders of Common Stock entitling holders to purchase Common Stock at a price less than the Historical Fair Market Value (as defined below) shall be deemed a capitalization of a number of shares of Common Stock equal to the product of:

(i)the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Common Stock) multiplied by

(ii)the result of (A) 1 minus (B) the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the Historical Fair Market Value.

For purposes of this Section 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for Common Stock, in determining the price payable for Common Stock, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Historical Fair Market Value” means the volume weighted average price of the Common Stock during the 10 trading day period ending on the trading day prior to the first date on which the Common Stock trades on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.

No Common Stock shall be issued at less than their par value. The Company shall not take any action that would result in any such issuance.

4.1.2Extraordinary Dividends. If, at any time while the Warrants are outstanding and unexpired, the Company pays an Extraordinary Dividend (as defined below), the Exercise Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Company’s board of directors, in good faith) of other assets paid on each Warrant Share in respect of such Extraordinary Dividend.

“Extraordinary Dividend” means a dividend or distribution to all or substantially all of the holders of Common Stock or a dividend or distribution in cash, securities or other assets on account of such Common Stock (or other shares into which the Warrants are convertible), other than:

(a)as described in Section 4.1.1; and

(b)Ordinary Cash Dividends (as defined below).

“Ordinary Cash Dividend” means any cash dividend or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions paid on the Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution to the extent it does not exceed $0.50 (which amount shall be adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Exercise Price or to the number of shares of Common Stock issuable on exercise of each Warrant). For any dividends in a currency other than U.S. dollars, the U.S. dollar equivalent shall be determined by the Company by reference to spot values at or about the time of declaration of the dividend, as determined in good faith by the Company.

4.2Aggregation of Shares. Subject to Section 4.4, if, after the date hereof, the number of issued and outstanding Common Stock is decreased by a consolidation, combination, reverse share sub-division or reclassification of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse share sub-division, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding Common Stock.

4.3Adjustments in Exercise Price. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted pursuant to Section 4.1.1 or 4.2, the Exercise Price shall be adjusted (to the nearest cent) by multiplying such Exercise Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.

4.4Replacement of Securities upon Reorganization, etc. Any of the following shall be a “Specified Transaction”:

(a)any reclassification or reorganization of the issued and outstanding Common Stock (other than a change covered by Section 4.1 or 4.2 or that solely affects the par value of such Common Stock or any other event in which the Common Stock are converted into or exchanged for or become any other security);

(b)any merger or consolidation of the Company with or into another corporation or other entity (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the issued and outstanding Common Stock); or

(c)any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety.

In the case of any Specified Transaction, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified herein and in the Warrants and in lieu of the Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or stock or other securities or property (including cash) receivable as a consequence of such Specified Transaction, or upon a dissolution following any Specified Transaction, that the holder of Warrants would have received if such holder had exercised such Warrants immediately prior to such Specified Transaction (the “Alternative Issuance”), subject to the following two exceptions:

First exception:

(i)if the holders of the Common Stock were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such Specified Transaction, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Common Stock in such Specified Event that affirmatively make such election; and

(ii)if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Common Stock under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the issued and outstanding Common Stock or more than 50% of the combined voting power of the common or ordinary equity of the Company, the holder of a Warrant shall be entitled to receive, as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer and accepted such offer and all of the Common Stock held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4.

Second exception (which shall operate cumulatively with the first exception): If less than 70% of the consideration receivable by the holders of the Common Stock in the Specified Transaction is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such Specified Transaction, and if the Registered Holder properly exercises the Warrant within 30 days following the public disclosure of the consummation of such Specified Transaction by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Exercise Price shall be reduced by an amount (in dollars) equal to the difference of

(i) the Exercise Price in effect prior to such reduction minus

(ii) the result (but not less than zero) of (A) the Per Share Consideration (as defined below) minus (B) the Black-Scholes Warrant Value (as defined below).

“Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable Specified Transaction based on the Black-Scholes Warrant Model for an Uncapped American Call on Bloomberg Financial Markets (assuming zero dividends) (“Bloomberg”). For purposes of calculating such amount, (i) the price of each Warrant Share shall be the volume weighted average price of the Common Stock during the 10 trading day period ending on the trading day prior to the effective date of the applicable event, (ii) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg¹ (or any successor function reasonably chosen by the Company) determined as of the trading day immediately prior to the day of the announcement of the applicable event and (iii) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant.

“Per Share Consideration” means (i) if the consideration paid to holders of the Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (ii) in all other cases, the volume weighted average price of the Common Stock during the 10 trading day period ending on the trading day prior to the effective date of the applicable Specified Transaction.

If any transaction also results in a change in Common Stock covered by Section 4.1.1, then such adjustment shall be made pursuant to Section 4.1.1 or Sections 4.2, 4.3 and this Section 4.4.

¹ Bloomberg screen reference to be confirmed. 

If any Specified Transaction results in the holders of Common Stock receiving shares of stock or, if applicable, other securities issued by an entity that is neither the Company nor the surviving entity that becomes obligated hereunder and under the Warrants as a matter of law, appropriate provision shall be made for the express assumption by such issuer of the Company’s obligations hereunder and under the Warrants.

In the case of any Specified Transaction, appropriate provision shall be made with respect to the rights and interests of each holder of Warrants to the end that the provisions hereof (including without limitation provision for adjustment of the Exercise Price and the number of shares of Common Stock deliverable upon exercise thereof) shall thereafter be applicable, as nearly equivalent as may be practicable in relation to any shares of stock or, if applicable, other securities thereafter deliverable upon the exercise thereof.

This Section 4.4 shall similarly apply to successive Specified Transactions.

In no event shall the Exercise Price be reduced to less than the par value per share issuable upon exercise of such Warrant.

4.5Notices of Changes in Warrant. Upon every adjustment of the Exercise Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Exercise Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Section 4.1, 4.2, 4.3 or 4.4, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.

4.6No Fractional Shares or Cash. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4 or Section 3.1, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of shares of Common Stock to be issued to such holder. In no event will the Company be required to pay cash to the holder of any Warrant by reason of the exercise of such Warrant.

4.7Form of Warrant After Adjustments. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4 or Section 3.1, and Warrants issued after such adjustment may state the same Exercise Price (as to each Tranche) and the same number of shares of Common Stock as is stated in the Warrants initially issued pursuant to this Agreement.

5.Transfer and Exchange of Warrants.

5.1Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender (in the case of a Physical Warrant Certificate) of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants of the same Tranche shall be issued, and the old Warrant shall be cancelled by the Warrant Agent. Physical Warrant Certificates for cancelled Warrants shall be delivered by the Warrant Agent to the Company from time to time upon request.

5.2Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, as applicable, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants of the same Tranche as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants of such Tranche.

5.3Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange that shall result in the issuance of a warrant certificate or book-entry position for a fraction of a Warrant.

5.4Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.

5.5Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.

6.Other Provisions Relating to Rights of Holders of Warrants and the Company.

6.1No Rights as Stockholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.

6.2Lost, Stolen, Mutilated or Destroyed Warrants. If any Warrant is lost, stolen, mutilated or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.

6.3Reservation of Warrant Shares. The Company shall at all times reserve and keep available a number of authorized but unissued shares of Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement and the issuance of the applicable number of shares of Common Stock. If necessary to effect the foregoing, the Company shall cause a meeting of stockholders to occur to approve such actions as shall be necessary.

6.4 Registration Rights Agreement. The Company shall comply with its obligations under the Registration Rights Agreement.

6.5Payment of Taxes. The Company shall from time to time promptly pay or cause to be paid (i) all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or exercise of any Warrant or the issuance of any Common Stock and (ii) any stamp duties and similar charges in respect of such issuance or exercise; however, the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such Common Stock.

Except as the Company may otherwise agree, each Registered Holder shall pay or cause to be paid any and all taxes that may be imposed on such Registered Holder in connection with the issuance or exercise of any Warrant or the issuance of any Common Stock.

6.6Further Assurances. The Company agrees to perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.

7.Concerning the Warrant Agent.

7.1Resignation, Consolidation, or Merger of Warrant Agent.

7.1.1Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving 60 days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit proof of ownership of a Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation or other entity organized and existing under the laws of the State of New York, in good standing and having its principal office in the United States of America, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties and obligations.

7.1.2 Notice of Successor Warrant Agent. If a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Common Stock not later than the effective date of any such appointment.

7.1.3Merger or Consolidation of Warrant Agent. Any entity into which the Warrant Agent may be merged or with which it may be consolidated or any entity resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.

7.2Fees and Expenses of Warrant Agent.

7.2.1Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.

7.3Liability of Warrant Agent.

7.3.1Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer, the President, the Chief Financial Officer, Chief Operating Officer, the General Counsel, the Secretary or the Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.

7.3.2Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct, fraud or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, out-of-pocket costs and reasonable outside counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct, fraud or bad faith.

7.3.3Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under Section 4 or responsible for the manner, method or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any Common Stock shall, when issued, be validly issued, fully paid and, if relevant to the jurisdiction of organization, nonassessable.

7.4 Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of Common Stock through the exercise of the Warrants.

8.Miscellaneous Provisions.

8.1Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

8.2Notices. Any notice, statement or demand authorized by this Agreement to be given or made to any party or to any Registered Holder (a “notice”) shall be in writing and shall be delivered personally, sent by registered, certified or express mail (postage prepaid) or overnight courier service (postage prepaid) or sent by email, in each case as set forth below. A notice shall be deemed given when received.

If to the Company, to it at:

Flexjet, Inc.
Cuyahoga County Airport

26180 Curtiss Wright Parkway

Cleveland, OH 44143
Attention: Kenneth C. Ricci

With copies (which shall not constitute notice) to:

White & Case LLP
1221 Avenue of the Americas
New York, NY 10020-1095
Attention: Joel Rubinstein; Daniel Nussen
Email: joel.rubinstein@whitecase.com; daniel.nussen@whitecase.com;

If to the Warrant Agent, to it at:

Continental Stock Transfer & Trust Company
One State Street, 30th Floor
New York, NY 10004
Attention: Compliance Department

If to a Registered Holder, to it at:

Its address for notices in the Warrant Register

Any party may change the address to which notices are to be delivered by giving the other party and the Registered Holders notice in the manner set forth above.

8.3 Applicable Law and Exclusive Forum. The validity, interpretation and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York. Subject to applicable law, the Company agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and the Company irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive forum for any such action, proceeding or claim. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum.

Any person purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented to the forum provisions in this Section 8.3. If any action, the subject matter of which is within the scope of the forum provisions above, is filed in a court other than a court located within the State of New York or the United States District Court for the Southern District of New York (a “foreign action”) in the name of any Warrant holder, such warrant holder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of New York or the United States District Court for the Southern District of New York in connection with any action brought in any such court to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent for such warrant holder.

8.4Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.

8.5Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the principal office of the Warrant Agent in the United States of America, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit proof of ownership of a Warrant for inspection by the Warrant Agent.

8.6Counterparts. This Agreement may be executed in any number of original or facsimile counterparts, and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

8.7Effect of Headings. The section headings herein are for convenience only, are not part of this Agreement and shall not affect the interpretation thereof.

8.8 Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of (i) curing any ambiguity or to correct any mistake or defective provision contained herein or (ii) adding or changing any provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable, subject, in the case of both clauses (i) and (ii), that such amendment shall not adversely affect the rights of any Registered Holder under this Agreement. All other amendments or other modifications shall require the vote or written consent of the Registered Holders of at least 60% of the then-outstanding Warrants and, solely with respect to any amendment or other modification to the terms of the Warrants of only one Tranche, at least 60% of the then-outstanding Warrants of such Tranche. Notwithstanding the foregoing, the Company may lower the Exercise Price or extend the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders.

8.9Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

8.10Certain Defined Terms. As used herein, the following terms have the following meanings:

“Agreement” has the meaning specified in the first paragraph hereof.

“Alternative Issuance” has the meaning specified in Section 4.4.

“BCA” means the Business Combination Agreement, dated as of October 11, 2022, among Horizon Acquisition Corporation II, a Cayman Islands exempted company, OTH Merger Sub 1, a Delaware limited liability company, the Company, Flexjet Sub LLC, a Delaware limited liability company, and Epic Aero, Inc., a Delaware corporation.

“Black-Scholes Warrant Value” has the meaning specified in Section 4.4.

“Bloomberg” has the meaning specified in Section 4.4.

“Business Day” means any day other than (i) Saturday or Sunday or (ii) any day on which banks are required or permitted not to be generally open for business in New York City, the city of the Warrant Agent’s principal corporate trust office, the Company’s principal office or the place of the registered office of the Company.

“Cashless Basis Exercise” has the meaning specified in Section 3.3.3.

“Commission” means the U.S. Securities and Exchange Commission.

“Common Stock” has the meaning specified in Section 2.1(a).

“Common Stock Register” has the meaning specified in Section 3.3.4.

“Company” has the meaning specified in the first paragraph hereof.

“Company Merger Effective Time” has the meaning specified in the BCA.

“Depositary” has the meaning specified in Section 2.4.1.

“Depositary Warrants” has the meaning specified in Section 2.4.1.

“Direct Book-Entry Warrants” has the meaning specified in Section 2.4.1.

“Directional” means Directional Capital, LLC, a Delaware limited liability company.

“Election to Purchase” has the meaning specified in Section 3.3.1.

“enforcement action” has the meaning specified in Section 8.3.

“Exchange Act” means the U.S. Securities Exchange Act of 1934.

“Exchange Agreement” has the meaning specified in the BCA.

“Exercise Period” has the meaning specified in Section 2.1(f).

“Exercise Price” has the meaning specified in Section 2.1(e).

“Expiration Date” has the meaning specified in Section 3.1.

“Extraordinary Dividend” has the meaning specified in Section 4.1.2.

“foreign action” has the meaning specified in Section 8.3.

“Historical Fair Market Value” has the meaning specified in Section 4.1.1.

“holder” has the meaning specified in Section 2.4.3.

“Ordinary Cash Dividend” has the meaning specified in Section 4.1.2.

“Participant” has the meaning specified in Section 2.4.1.

“Per Share Consideration” has the meaning specified in Section 4.4.

“person” means any individual or any partnership, corporation, company, firm, limited liability company, association, estate, trust, business trust, joint venture, governmental authority, fund, investment account or other entity.

“Physical Warrant Certificates” has the meaning specified in Section 2.2.

“Registered Holder” has the meaning specified in Section 2.4.3.

“Registration Rights Agreement” has the meaning specified in the BCA.

“relevant date” has the meaning specified in Section 3.3.6.

“Specified Transaction” has the meaning specified in Section 4.4.

“Sponsor” means Horizon II Sponsor, LLC, a Delaware limited liability company.

“Stockholders Agreement” has the meaning specified in the BCA.

“Tranche 1” has the meaning specified in Section 2.1(c).

“Tranche 2” has the meaning specified in Section 2.1(c).

“Tranches” has the meaning specified in Section 2.1(c).

“Warrant Agent” has the meaning specified in the first paragraph hereof.

“Warrant Register” has the meaning specified in Section 2.4.1.

“Warrants” has the meaning specified in the Recitals.

8.11Interpretation. Except as otherwise specified herein or as the context may otherwise require:

(i) capitalized terms used in this Agreement have the respective meanings assigned to them herein for all purposes of this Agreement;

(ii) the definitions of terms herein are equally applicable both to the singular and plural forms of such terms and to the masculine, feminine and neuter genders of such terms;

(iii) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular portion of it;

(iv) the word “including” and correlative words shall be deemed to be followed by the phrase “without limitation” unless followed by such phrase or a phrase of similar import;

(v) the word “or” is always used inclusively herein (for example, the phrase “A or B” means “A or B or both”, not “either A or B but not both”) when not used in an “either . . . or” construction;

(vi) references to a person include references to such person’s successors and assigns (but this clause (vi) shall not permit any assignment of any right hereunder or any delegation of any obligation hereunder that is prohibited or limited hereby);

(vii) references to an agreement, instrument or other document are to it as amended, supplemented, restated and otherwise modified from time to time and to any successor document;

(viii) references to a statute, regulation or other government rule are to it as amended from time to time and, as applicable, are to corresponding provisions of successor governmental rules;

(ix) all references herein to “$” or dollars are to United States dollars; and

(x) references to a “Section” are to a section of this Agreement.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.

FLEXJET, INC.

By:

Name:

Title:

CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent

By:

Name:

Title:

[Signature Page to New Warrant Agreement] 

EXHIBIT A
Form of Physical Warrant Certificate

Physical Warrant Certificate

EACH WARRANT REPRESENTED HEREBY SHALL BE VOID IF NOT EXERCISED PRIOR TO THE EXPIRATION OF THE EXERCISE PERIOD REFERRED TO BELOW

Flexjet, Inc.
Incorporated Under the Laws of Delaware

Certificate Number:²

Name of Registered Holder: [●]

Number of Warrants: [●]

Tranche: [1][2]

Date of Issuance: [●]

[CUSIP [●]]³

Reference is made to the New Warrant Agreement dated as of [●], 2023 (as amended and otherwise modified from time to time, the “Warrant Agreement”) between Flexjet, Inc., a Delaware corporation (together with its successors, the “Company”), and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (together with its successors, the “Warrant Agent”). Defined terms used but not defined herein are used as defined in the Warrant Agreement.

This document (this “Certificate”) is a Physical Warrant Certificate issued under the Warrant Agreement.

This Certificate certifies that the Registered Holder specified above, or registered assigns, is the Registered Holder of the number of Warrants specified above, of the Tranche specified above. Each Warrant entitles the holder, upon exercise, to receive shares of Common Stock or other property upon the terms and subject to the conditions set forth in the Warrant Agreement. Such terms and conditions include, among other things, (i) the Exercise Period during which a Warrant may be exercised (and after which it is void), (ii) the Exercise Price applicable to each Tranche and the adjustments thereto, (iii) the number of shares of Common Stock deliverable per Warrant and the adjustments thereto and (iv) the permitted or required means of payment or deemed payment of the Exercise Price.

No Warrant shall be redeemable at the option of the Company or the holder thereof or otherwise.

² [Note for completing: The number of this Certificate should be such as to permit the ready distinction between the Tranche of Warrants represented by this Certificate. For example, Certificates for Tranche 1 could be numbered 1-1, 1-2, etc., and Certificates for Tranche 2 could be numbered 2-1, 2-2, etc.] 

³ [Note for completing: It is not expected that the Warrants of either Tranche will be initially issued with CUSIPs.] 

Reference is hereby made to the additional provisions of this Certificate set forth on the reverse hereof. Such provisions shall have the same effect as though fully set forth at this place.

This Certificate shall not be valid unless countersigned by the Warrant Agent. This Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.

FLEXJET, INC.

By:

Name:

Title: Authorized Signatory

CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS WARRANT AGENT

By:

Name:

Title:

Reverse of Physical Warrant Certificate

The Warrant Agreement is hereby incorporated by reference in and made a part of this Certificate and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company.

The holder of Warrants evidenced by this Certificate may exercise them by surrendering this Certificate, with the form of Election to Purchase herein properly completed and executed, at the principal corporate trust office of the Warrant Agent. The related payment of the applicable Exercise Price as provided in the Warrant Agreement shall be required, except to the extent that a Cashless Basis Exercise is applicable as specified in the Warrant Agreement. If the number of Warrants exercised is fewer than the total number of Warrants evidenced hereby, there shall be issued a new Physical Warrant Certificate evidencing the number of Warrants not exercised.

Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, as applicable, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants of the same Tranche as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants of such Tranche.

The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender (in the case of a Physical Warrant Certificate) of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants of the same Tranche shall be issued, and the old Warrant shall be cancelled by the Warrant Agent.

No service charge shall be made for any exchange or registration of transfer of Warrants.

Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the Registered Holder thereof as the absolute owner of such Warrant and of each Warrant represented thereby, for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.

Election to Purchase

(To Be Executed Upon Exercise of Warrant)

The undersigned hereby irrevocably elects to exercise the right, represented by this Certificate, to receive [●] shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of the Company in the amount of $[●] in accordance with the terms hereof. The undersigned requests that a certificate for such Common Stock be registered in the name of [●], whose address is [●], and that such Common Stock be delivered to [●] whose address is [●]. If this Certificate is exercised in part, the undersigned requests that a new Physical Warrant Certificate representing the unexercised Warrants be registered in the name of [●], whose address is [●], and that such Physical Warrant Certificate be delivered to [●], whose address is [●].

In a Cashless Basis Exercise pursuant to the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with the applicable provisions of the Warrant Agreement

In order to effect a Cashless Basis Exercise, the holder hereof shall include complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Certificate, through the Cashless Basis Exercise provisions of the Warrant Agreement, to receive [●] shares of Common Stock pursuant to a Cashless Basis Exercise.

[Signature Page Follows]

Date: [●], 20[●]

(Signature)

(Address)

(Tax Identification Number)

Signature Guaranteed:

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED).

EXHIBIT B

LEGEND

THE WARRANTS REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE.

IN ADDITION, THE WARRANTS REPRESENTED HEREBY ARE SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN THE STOCKHOLDERS AGREEMENT REFERRED TO IN THE WARRANT AGREEMENT REFERRED TO HEREIN AND THE BYLAWS OF THE COMPANY.

EX-10.3

Exhibit 10.3

SUPPORT AND NON-REDEMPTION AGREEMENT

This SUPPORT AND NON-REDEMPTION AGREEMENT (this “Agreement”) is made and entered into as of October 11, 2022, by and among Horizon Acquisition Corporation II, a Cayman Islands exempted company (“SPAC”), Horizon II Sponsor, LLC, a Delaware limited liability company (“Sponsor”), Flexjet, Inc., a Delaware corporation (“Flexjet”) and Epic Aero, Inc., a Delaware corporation (“Epic”, and, together with Flexjet, the “Target Companies”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the BCA (as defined below).

WHEREAS, SPAC is a blank check company incorporated as a Cayman Islands exempted company organized for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one or more operating businesses (the “Business Combination”);

WHEREAS, concurrently with the execution of this Agreement, SPAC, OTH Merger Sub 1, LLC, a Delaware limited liability company and a wholly-owned subsidiary of SPAC (“Merger Sub 1”) and the other parties thereto (including Flexjet and Epic) are entering into a Business Combination Agreement (as amended, restated, modified, supplemented or waived from time to time, the “BCA”);

WHEREAS, as an inducement to SPAC and the Target Companies to enter into the BCA and to consummate the transactions contemplated therein, the parties hereto desire to agree to certain matters as set forth herein;

WHEREAS, the holders of certain shares of SPAC Class A Common Stock may redeem their shares for a portion of the funds held in SPAC’s Trust Account (the “Redemption Right”) pursuant to Section 49.5 of the Amended and Restated Memorandum and Articles of Association of SPAC, dated as of October 20, 2020, as currently in effect (the “SPAC’s Articles”); and

WHEREAS, Sponsor does not intend to elect to redeem or tender or submit all or any portion of the Sponsor Securities (as defined below) for redemption in connection with the proposed Business Combination or Sponsor’s Redemption Right.

NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1.Waiver of Anti-dilution Protection. Sponsor hereby, automatically and without any further action by Sponsor or SPAC or any other Person, irrevocably (a) waives (for itself and for its successors, heirs and assigns (including any permitted assigns under Section 3)) to the fullest extent any adjustment to the Initial Conversion Ratio (as such term is defined in the SPAC’s Articles), including such adjustment as set forth in Article 17 of SPAC’s Articles, and any other rights to adjustments or anti-dilution protections pursuant to SPAC’s Organizational Documents or otherwise, and (b) agrees (for itself and for its successors, heirs and assigns (including any permitted assigns under Section 3)) not to exercise, assert or perfect any rights to adjustment or other anti-dilution protections, in each case, with respect to the rate that any of the shares of SPAC Class B Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants or any other Sponsor Securities held by Sponsor convert into shares of SPAC Class A Common Stock or other equity securities (including those of SPAC or Flexjet) in connection with the PIPE Investment, the other transactions contemplated by the BCA or otherwise, and, in furtherance of the foregoing, Sponsor hereby irrevocably and unconditionally agrees and acknowledges that such waiver and agreement constitutes sufficient and necessary waiver under the terms of SPAC’s Organizational Documents to waive any and all adjustments to the Initial Conversion Ratio (or the equivalent thereof in Flexjet’s Organizational Documents) in connection with the transactions contemplated by the BCA.

2. New Shares. If, between the date of this Agreement and the Closing, (a) any shares of SPAC Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants or other equity interests of SPAC or Flexjet are issued to Sponsor, or the outstanding shares of SPAC Common Stock or Flexjet Common Stock or conversion rate of the SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants, Flexjet New Private $10.00 Warrants, Flexjet New Private $15.00 Warrants, Flexjet Assumed Private $11.50 Warrants or Flexjet Assumed Public $11.50 Warrants, in each case owned by Sponsor shall have been changed into a different number of shares or a different class or rate, by reason of any dividend, subdivision, reclassification, recapitalization, split, combination or exchange, or any similar event (including, for the avoidance of doubt, any shares or other equity interests of SPAC or Flexjet converted or received in connection with the SPAC Merger or pursuant to the Exchange Agreement, as applicable), (b) Sponsor purchases or otherwise acquires record or beneficial ownership of any shares of SPAC Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants or other equity interests of SPAC or Flexjet or (c) Sponsor acquires the right to vote or share in the voting of any shares of SPAC Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants or other equity interests of SPAC or Flexjet (such shares of SPAC Common Stock, Flexjet Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants, Flexjet New Private $10.00 Warrants, Flexjet New Private $15.00 Warrants, Flexjet Assumed Private $11.50 Warrants, Flexjet Assumed Public $11.50 Warrants or other equity interests of SPAC or Flexjet owned, issued, purchased or acquired by Sponsor as described in the foregoing clauses (a), (b) or (c), collectively “New Securities”), then such New Securities owned, issued, acquired or purchased by Sponsor shall become Sponsor Securities for all intents and purposes of this Agreement from and after the date of such acquisition or purchase.

3.No Transfer. During the period commencing on the date hereof and ending on the date on which this Agreement terminates in accordance with Section 7, except as expressly contemplated by the BCA and the Exchange Agreement, dated as of the date hereof, by and between Sponsor, Directional Capital LLC, an Ohio limited liability company, and Flexjet (the “Exchange Agreement”), Sponsor shall not, directly or indirectly, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, assign, transfer (including by operation of law), place a lien on, grant any option to purchase, distribute, dispose of or otherwise encumber, or agree to do any of the foregoing (collectively, a “Transfer”), file (or participate in the filing of) a registration statement with the SEC (other than the Proxy Statement/Prospectus or Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any shares of SPAC Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants or other equity interests of SPAC or Flexjet owned by Sponsor, including the Sponsor Securities, (ii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any shares of SPAC Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants or other equity interests of SPAC or Flexjet owned by Sponsor, including the Sponsor Securities, (iii) engage in any swap, hedging or other arrangement that is designed to, or which would (either alone or in connection with one or more developments or events (including the satisfaction or waiver of any conditions precedent)), lead to or result in a sale, disposition or transfer to another Person, in whole or in part, any of the economic consequences of ownership of any shares of SPAC Common Stock, SPAC Public $11.50 Warrants, SPAC Private $11.50 Warrants or other equity interests of SPAC or Flexjet owned by Sponsor, including the Sponsor Securities, (iv) take any action that would prevent or materially delay the performance of its obligations hereunder or (v) announce any intention to effect any transaction specified in clause (i) through (iv); provided, however, that Transfers of Sponsor Securities by Sponsor to any Affiliate of Sponsor are permitted if, as a precondition to such Transfer, the transferee also agrees in a writing, reasonably satisfactory in form and substance to the Target Companies, to assume all of the obligations of Sponsor under, and be bound by all of the terms of, this Agreement with respect to the Sponsor Securities subject to such Transfer; provided, further, that any Transfer permitted under this Section 3 shall not relieve the Sponsor of its obligations under this Agreement. Sponsor agrees not to, directly or indirectly, deposit any of the Sponsor Securities in a voting trust, enter into a voting trust, grant any proxy or power of attorney with respect to any Sponsor Securities or subject any of the Sponsor Securities to any arrangement with respect to the voting of such Sponsor Securities other than this Agreement. Any transfer or attempted transfer of Sponsor Securities or other equity interests of SPAC or Flexjet owned by Sponsor in violation of this Section 3 shall be, to the fullest extent permitted by applicable Law, null and void ab initio. Sponsor agrees that (a) prior to the Termination Date, it shall not request that SPAC or Flexjet register the Transfer (book entry or otherwise) of any of the Sponsor Securities if such Transfer is not permitted by this Agreement and (b) as soon as reasonably practicable following the date of this Agreement, it shall advise SPAC’s transfer agent in writing that the Sponsor Securities are subject to the restrictions set forth herein and, in connection therewith, provide such transfer agent with such information as is reasonable to ensure compliance with such restrictions; for the avoidance of doubt, the obligations of SPAC under this sentence shall be deemed to be satisfied by the existence of any similar stop order and restrictions currently existing on the Sponsor Securities.

4.Representations and Warranties. Sponsor hereby represents and warrants to the Target Companies as follows:

(a)Sponsor owns of record and beneficially, free and clear of all Liens (other than transfer restrictions under applicable securities Laws and SPAC’s Organizational Documents), 15,500,000 shares of SPAC Class A Common Stock, 13,125,000 shares of SPAC Class B Common Stock, 5,166,667 SPAC Public $11.50 Warrants and 6,266,667 SPAC Private $11.50 Warrants (collectively, together with any New Securities owned, issued, acquired or purchased by Sponsor between the date of this Agreement and the Closing (including, for the avoidance of doubt, the New Securities to be issued to Sponsor in connection with the Exchange and SPAC Merger) , the “Sponsor Securities”). Sponsor has the sole voting power with respect to the Sponsor Securities. The Sponsor Securities are the only equity securities in SPAC owned of record or beneficially by Sponsor, and none of the Sponsor Securities are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of the Sponsor Securities, except as provided hereunder and under the Insider Letter. Other than the 5,166,667 SPAC Public $11.50 Warrants and 6,266,667 SPAC Private $11.50 Warrants owned by Sponsor, and the Sponsor Convertible Note delivered by SPAC in the total amount of $300,000 from Sponsor, dated as of September 19, 2022, and except as contemplated by the Exchange Agreement or the SPAC Merger, Sponsor does not hold or own any rights to acquire (directly or indirectly) any equity interests of SPAC or Flexjet or any equity securities convertible into, or which can be exchanged for, equity securities of SPAC.

(b)Sponsor has been duly formed and is validly existing as a limited liability company and in good standing under the Laws of its jurisdiction of formation, and has the requisite power and authority to own, lease or operate all of its properties and assets and to conduct its business as it is now being conducted. Sponsor has all requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby and to perform all of its obligations hereunder. The execution and delivery of this Agreement have been, and the consummation of the transactions contemplated hereby has been, duly authorized by all requisite action by Sponsor. This Agreement has been duly and validly executed and delivered by Sponsor and, assuming this Agreement has been duly authorized, executed and delivered by the other parties hereto, this Agreement constitutes, and upon its execution will constitute, a legal, valid and binding obligation of Sponsor enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts in granting equitable remedies. The Person signing this Agreement has full power and authority to enter into this Agreement on behalf of Sponsor.

(c)There are no Actions pending against Sponsor, or, to the knowledge of Sponsor, threatened against Sponsor, by or before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, that would, in any manner, reasonably be expected to challenge or seek to enjoin, alter or materially delay the performance by Sponsor of its obligations under this Agreement.

(d)The execution and delivery of this Agreement by Sponsor does not, and the performance by Sponsor of its obligations hereunder will not, (i) conflict with or result in a violation of the Organizational Documents of Sponsor or (ii) require any consent or approval that has not been given or other action that has not been taken by any Person (including under any Contract binding upon Sponsor or the Sponsor Securities), in each case, to the extent such consent, approval or other action would reasonably be expected to prevent, enjoin or materially delay the performance by Sponsor of its obligations under this Agreement.

(e)Except as described on Section 5.15 of the SPAC Disclosure Letter, no broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by the BCA based upon arrangements made by Sponsor, for which SPAC or any of its Affiliates may become liable.

(f)Except for any Contract listed in a form, report, schedule, statement or other document publicly filed or furnished by SPAC with the SEC, neither Sponsor nor, to the knowledge of Sponsor, any Person in which Sponsor has a direct or indirect legal, contractual or beneficial ownership of 5% or greater, or any Affiliate, officer, manager or other employee of Sponsor, is party to, or has any rights with respect to or arising from, any Contract with SPAC or its Subsidiaries.

(g)Sponsor understands and acknowledges that each of SPAC and the Target Companies is entering into the BCA in reliance upon Sponsor’s execution and delivery of this Agreement.

5.Sponsor Agreements. Unless and until this Agreement is terminated in accordance with Section 7, Sponsor hereby unconditionally and irrevocably agrees:

(a)at the SPAC Shareholders’ Meeting (including any adjournment thereof) or any other shareholder or warrantholder meeting of SPAC or Flexjet, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders, warrantholders or other equity holders of SPAC or Flexjet is sought, including in any action by written resolution of the shareholders or warrantholders of SPAC or Flexjet, to be present in person or by proxy (in the case of any meeting or adjournment) and vote or provide consent to, or cause to be voted or consented to at such meeting, adjournment or pursuant to such action, all Sponsor Securities entitled to vote thereon in favor of, and to adopt and approve, the Transaction Proposals;

(b)at the SPAC Shareholders’ Meeting (including any adjournment thereof ) or any other shareholder or warrantholder meeting of SPAC or Flexjet, or at any adjournment thereof, or in any other circumstance in which the vote, consent or other approval of the shareholders, warrantholders or other equity holders of SPAC or Flexjet is sought, including in any action by written resolution of the shareholders or warrantholders of SPAC or Flexjet, to be present in person or by proxy (in the case of any meeting or adjournment) and vote or provide consent to, or cause to be voted or consented to at such meeting, adjournment, or pursuant to such action, all Sponsor Securities entitled to vote thereon against, and withhold consent with respect to (i) any Business Combination Proposal or other proposal relating to a Business Combination Proposal other than the Transaction Proposals or the transactions contemplated under the BCA; (ii) any merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of SPAC or Flexjet other than as contemplated under the BCA; (iii) any change in the business, management or board of directors of SPAC or Flexjet other than as contemplated under the BCA; and (iv) any other action, proposal or agreement that would be reasonably expected to (1) impede, frustrate, prevent, nullify, interfere with, delay, postpone, adversely affect, be in direct opposition to, or be in direct competition with, the Transaction Proposals or any of the other transactions contemplated by the BCA, in each case, other than the proposal to adjourn or postpone the SPAC Shareholders’ Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt the other Transaction Proposals, (2) result in a breach of any covenant, representation or warranty or other obligation or agreement of SPAC, Merger Sub 1, or, from and upon the SPAC Merger until the Closing, Flexjet under the BCA, (3) result in a breach of any covenant, representation or warranty or other obligation or agreement of Sponsor contained in this Agreement, (4) result in any of the conditions precedent set forth in Section 9.1 and Section 9.3 of the BCA not being fulfilled or (5) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, SPAC or Flexjet, other than as contemplated under the BCA;

(c)if a meeting is held in respect of the matters set forth in clauses (a) or (b) above, to appear at the meeting, in person or by proxy, or otherwise cause all of the Sponsor Securities to be counted as present thereat for purposes of establishing a quorum, and, if action by written resolution is sought in respect of the matters set forth in clauses (a) or (b) above, to execute and deliver a written consent (or cause a written consent to be executed and delivered) covering all of the Sponsor Securities;

(d)not to redeem, elect to redeem or tender or submit all or any portion of the Sponsor Securities for redemption in connection with such shareholder approval or proposed Business Combination, the transactions contemplated under the BCA, Sponsor’s Redemption Right, any vote to amend the SPAC’s or Flexjet’s Organizational Documents or otherwise. Any attempt to redeem the Sponsor Securities will be void ab initio and of no effect; and

(e)to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all things reasonably necessary under applicable Laws to consummate the Transactions and the other transactions contemplated by the BCA on the terms and subject to the conditions set forth therein, and not to commit or agree to take any action inconsistent with the foregoing.

From the date hereof until the Termination Date, Sponsor hereby agrees that it shall not commit, agree, or publicly propose any intention to take any action inconsistent with the foregoing. The obligations of Sponsor specified in this Section 5 will apply whether or not any of the Transaction Proposals is recommended by Board of Directors of SPAC and whether or not the Board of Directors of SPAC has previously recommended any of the Transaction Proposals but changed such recommendation.

6.Other Covenants.

(a)Sponsor hereby acknowledges that it has read the BCA and this Agreement and has had the opportunity to consult with its tax and legal advisors. From the date hereof until the Termination Date, Sponsor hereby agrees to be bound by and subject to (i) Section 8.3 (Support of the Transaction) and Section 11.14 (Publicity) of the BCA, and any relevant definitions contained in such Sections, to the same extent as such provisions apply to the parties to the BCA, as if Sponsor is directly a party thereto, and (ii) Section 7.2 (No Solicitation by SPAC) of the BCA, and any relevant definitions contained in such Sections, to the same extent as such provisions apply to SPAC (but for the avoidance of doubt, without expanding the definition of “Business Combination” or “Business Combination Proposal”), as if Sponsor is directly a party thereto and, for the avoidance of doubt, for purposes of this Section 6(a), each reference to “SPAC” contained in Section 7.2 of the BCA (other than Section 7.2(b)) shall be deemed to also refer to Sponsor.

(b)Sponsor shall take, and shall cause its controlled Affiliates to take, all steps within its and their respective control that are necessary in order to extend the SPAC Business Combination Deadline to a date following the date of the Closing, including, without limitation, voting all of the Sponsor Securities in favor of approving one or more amendments to SPAC’s Organizational Documents to extend the SPAC Business Combination Deadline, as necessary to consummate the transactions contemplated by the BCA.

(c)On the Closing Date, Sponsor shall deliver to Flexjet and the Company a duly executed copy of the Registration Rights Agreement, in substantially the form attached as Exhibit C to the BCA.

(d)On the Closing Date, Sponsor shall deliver to Flexjet and the Company a duly executed copy of the Stockholders Agreement, in substantially the form attached as Exhibit D to the BCA.

(e)Sponsor acknowledges and agrees that the Target Companies are entering into the BCA in reliance upon Sponsor entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and but for Sponsor entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement, the Target Companies would not have entered into, or agreed to consummate the transactions contemplated by, the BCA.

(f)Sponsor shall comply with, and fully perform all of its obligations, covenants and agreements set forth in the Insider Letter, including the obligations of Sponsor to not redeem any shares of SPAC Common Stock owned by Sponsor in connection with the transactions contemplated by the BCA.

(g)During the period commencing on the date hereof and ending on the earlier of the consummation of the Closing and the termination of the BCA pursuant to Article X thereof, Sponsor shall not modify or amend any Contract between or among Sponsor or any Affiliate of Sponsor (other than SPAC or any of its Subsidiaries), on the one hand, and SPAC or any of SPAC’s Subsidiaries, on the other hand, including the Insider Letter, without the prior written consent of the Company.

7.Termination. This Agreement shall automatically terminate, without any notice or other action by any party hereto, and have no further force and effect, upon the earliest of (i) the consummation of the Closing, (ii) the valid termination of the BCA in accordance with its terms, (iii) the dissolution, liquidation or winding up of SPAC, and (iv) the time this Agreement is terminated upon the mutual written agreement of SPAC, Sponsor and the Target Companies (the earliest such date under clause (i), (ii), (iii) and (iv) being referred to herein as the “Termination Date”). Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, the termination of this Agreement pursuant to clauses (ii), (iii) or (iv) of this Section 7 shall not affect any liability on the part of any party hereto for a willful breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud, and this Section 7 and Section 11 through (and including) Section 16 (other than with respect to the application of Section 11.18 of the BCA to apply mutatis mutandis to this Agreement in Section 15) shall survive any termination of this Agreement.

8. No Inconsistent Agreement. Sponsor hereby represents and covenants that Sponsor has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of Sponsor’s obligations hereunder.

9.No Challenges. From the date hereof until the Termination Date, Sponsor agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions within its power necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against SPAC, Merger Sub 1, the Target Companies or any of their respective successors or directors (except in any case arising out of the fraud of such parties) (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the BCA. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit Sponsor from enforcing Sponsor’s rights under this Agreement and the other agreements entered into by Sponsor in connection herewith, or otherwise in connection with the Mergers or the other transactions contemplated by the BCA.

10.Consent to Disclosure. Sponsor hereby consents to the publication and disclosure in the Proxy Statement/Prospectus or Registration Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by SPAC or any of the Target Companies to any Governmental Authority or to securityholders of SPAC or Flexjet) of Sponsor’s identity and beneficial ownership of Sponsor Securities and the nature of Sponsor’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed reasonably appropriate by SPAC or any of the Target Companies, a copy of this Agreement. Sponsor will promptly provide any information reasonably requested by SPAC or any of the Target Companies for any regulatory application or filing made or approval sought in connection with the transactions contemplated by the BCA, including any approval or filing specifically set forth in the BCA (including filings with the SEC), except for any information that is subject to attorney-client privilege or confidentiality obligations (provided, that with respect to any confidentiality obligations, (a) Sponsor will use its commercially reasonable efforts to obtain a waiver of any such confidentiality obligations and (b) Sponsor, SPAC and the Target Companies shall cooperate in good faith to enable disclosure of such information to the maximum extent possible in a manner that complies with such confidentiality obligations).

11.Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three Business Days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:

if to Sponsor or SPAC, to:

600 Steamboat Road, Suite 200
Greenwich, CT 06830
Attention: General Counsel

with a required copy to (which copy shall not constitute notice):

Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019

Email:	mpollin@sidley.com
Attention:	Myles Pollin

and

Sidley Austin LLP
2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201

Email:	bhowell@sidley.com
	rscofield@sidley.com
Attention:	Bill Howell
	Ryan Scofield

if to Epic or Flexjet, to:

Epic Aero, Inc.

Cuyahoga County Airport

26180 Curtiss Wright Parkway

Cleveland, Ohio 44143

Attention: Michael A. Rossi

with a required copy to (which copy shall not constitute notice):

White & Case LLP
1221 Avenue of the Americas
New York, NY 10020-1095

Attention:	Joel Rubinstein
	Daniel Nussen
	Matthew Kautz
	Neeta Sahadev
Email:	joel.rubinstein@whitecase.com
	daniel.nussen@whitecase.com
	mkautz@whitecase.com
	neeta.sahadev@whitecase.com

12.Counterparts. This Agreement may be executed and delivered in counterparts (including by facsimile or electronic transmission), each of which shall constitute an original, and all of which when taken together shall constitute one and the same agreement.

13.Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by the parties hereto.

14.Assignment and Successors. Except as may be expressly permitted by Section 3, neither this Agreement nor any rights, interests or obligations hereunder may be assigned without the prior written consent of the non-assigning parties hereto. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

15.Miscellaneous. Sections 1.2 (Construction); 11.1 (Trust Account Waiver), 11.9 (Governing Law), 11.15 (Severability), 11.16 (Jurisdiction; Waiver of Jury Trial) and 11.18 (Other Remedies; Specific Enforcement) of the BCA are incorporated by reference herein and shall apply hereto mutatis mutandis.

16.Entire Agreement; No Third Party Beneficiaries. This Agreement, together with the BCA, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the parties hereto, any right or remedies under or by reason of this Agreement; provided, that, notwithstanding the foregoing, from and upon the Company’s execution of a joinder to the BCA, the Company (a) shall be an intended third party beneficiary of this Agreement and (b) may directly enforce (including by an action for specific performance, injunctive relief or other equitable relief) this Agreement as though a direct party hereto.

* * * * *

IN WITNESS WHEREOF, each of the parties has duly executed this Agreement as of the date first written above.

HORIZON II SPONSOR, LLC
By:	/s/ Todd L. Boehly
Name:	Todd L. Boehly
Title:	Chief Executive Officer
HORIZON ACQUISITION CORPORATION II
By:	/s/ Todd L. Boehly
Name:	Todd L. Boehly
Title:	Chief Executive Officer and Chairman

Signature Page to Support and Non-Redemption Agreement

EPIC AERO, INC.
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	Chairman and President
FLEXJET, INC.
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	Chairman and President

Signature Page to Support and Non-Redemption Agreement 

EX-10.4

Exhibit 10.4

COMPANY SUPPORT AGREEMENT

This COMPANY SUPPORT AGREEMENT (this “Agreement”) is made and entered into as of October 11, 2022, by and among Horizon Acquisition Corporation II, a Cayman Islands exempted company (“SPAC”), Flexjet, Inc., a Delaware corporation (“Flexjet”), Epic Aero, Inc., a Delaware corporation (“Epic”, and, together with Flexjet, the “Target Companies”) and the undersigned, a stockholder of Epic (“Stockholder”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the BCA (as defined below).

WHEREAS, SPAC is a blank check company incorporated as a Cayman Islands exempted company organized for the purpose of effecting a merger, amalgamation, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one or more operating businesses (the “Business Combination”);

WHEREAS, concurrently with the execution of this Agreement, SPAC, OTH Merger Sub 1, LLC, a Delaware limited liability company and a wholly-owned subsidiary of SPAC (“Merger Sub 1”) and the other parties thereto (including Flexjet and Epic) are entering into a Business Combination Agreement (as amended, restated, modified, supplemented or waived from time to time, the “BCA”); and

WHEREAS, as an inducement to SPAC and Merger Sub 1 to enter into the BCA and to consummate the transactions contemplated therein, the parties hereto desire to agree to certain matters as set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

1.New Shares. If, between the date of this Agreement and the Closing, (a) any shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock or other equity interests of Epic or the Company are issued to Stockholder, or the outstanding shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock, in each case owned by Stockholder shall have been changed into a different number of shares or a different class or rate, by reason of any dividend, subdivision, reclassification, recapitalization, split, combination or exchange, or any similar event (including, for the avoidance of doubt, any shares or other equity interests of Epic or the Company converted or received in connection with the Pre-Closing Reorganization), (b) Stockholder purchases or otherwise acquires record or beneficial ownership of any shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock or other equity interests of Epic or the Company or (c) Stockholder acquires the right to vote or share in the voting of any shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock or other equity interests of Epic or the Company (such shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock or other equity interests of Epic or the Company owned, issued, purchased or acquired by Stockholder as described in the foregoing clauses (a), (b) or (c), collectively “New Securities”), then such New Securities owned, issued, acquired or purchased by Stockholder shall become Stockholder Securities (as defined in Section 3(a) below) for all intents and purposes of this Agreement from and after the date of such acquisition or purchase.

2.No Transfer. During the period commencing on the date hereof and ending on the date on which this Agreement terminates in accordance with Section 6, except as expressly contemplated by the BCA and the Pre-Closing Reorganization, Stockholder shall not, directly or indirectly, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, assign, transfer (including by operation of law), place a lien on, grant any option to purchase, distribute, dispose of or otherwise encumber, or agree to do any of the foregoing (collectively, a “Transfer”), file (or participate in the filing of) a registration statement with the SEC (other than the Proxy Statement/Prospectus or Registration Statement) or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, with respect to any shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock or other equity interests of Epic or the Company owned by Stockholder, including the Stockholder Securities, (ii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock or other equity interests of Epic or the Company owned by Stockholder, including the Stockholder Securities, (iii) engage in any swap, hedging or other arrangement that is designed to, or which would (either alone or in connection with one or more developments or events (including the satisfaction or waiver of any conditions precedent)), lead to or result in a sale, disposition or transfer to another Person, in whole or in part, any of the economic consequences of ownership of any shares of Epic Common Stock, Epic Preferred Stock, Company Common Stock or Company Preferred Stock or other equity interests of Epic or the Company owned by Stockholder, including the Stockholder Securities, (iv) take any action that would prevent or materially delay the performance of its obligations hereunder or (v) announce any intention to effect any transaction specified in clause (i) through (iv); provided, however, that Transfers of Stockholder Securities by Stockholder to any Affiliate of Stockholder are permitted if, as a precondition to such Transfer, the transferee also agrees in a writing, reasonably satisfactory in form and substance to the Target Companies, to assume all of the obligations of Stockholder under, and be bound by all of the terms of, this Agreement with respect to the Stockholder Securities subject to such Transfer; provided, further, that any Transfer permitted under this Section 2 shall not relieve Stockholder of its obligations under this Agreement. Stockholder agrees not to, directly or indirectly, deposit any of the Stockholder Securities in a voting trust, enter into a voting trust, grant any proxy or power of attorney with respect to any Stockholder Securities or subject any of the Stockholder Securities to any arrangement with respect to the voting of such Stockholder Securities other than this Agreement. Any transfer or attempted transfer of Stockholder Securities or other equity interests of Epic or the Company owned by Stockholder in violation of this Section 2 shall be, to the fullest extent permitted by applicable Law, null and void ab initio. Stockholder agrees that prior to the Termination Date, it shall not request that Epic or the Company register the Transfer (book entry or otherwise) of any of the Stockholder Securities if such Transfer is not permitted by this Agreement.

3.Representations and Warranties. Stockholder hereby represents and warrants to SPAC and the Target Companies as follows:

(a)Stockholder owns of record and beneficially, free and clear of all Liens (other than transfer restrictions under applicable securities Laws and Epic’s Organizational Documents), such number of shares of Epic Common Stock and Epic Preferred Stock as set forth on Stockholder’s signature page (collectively, together with any New Securities owned, issued, acquired or purchased by Stockholder between the date of this Agreement and the Closing (including, for the avoidance of doubt, any New Securities to be issued to Stockholder in connection with the Pre-Closing Reorganization), the “Stockholder Securities”). Stockholder has the sole voting power with respect to the Stockholder Securities. The Stockholder Securities are the only equity securities in Epic or the Company owned of record or beneficially by Stockholder, and none of the Stockholder Securities are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of the Stockholder Securities, except as provided hereunder or as set forth in Epic’s Organizational Documents or that certain Third Amended and Restated Stockholders’ Agreement, dated March 12, 2021, by and among Epic and the other parties thereto (as may be amended from time to time). Except as contemplated by the Pre-Closing Reorganization, Stockholder does not hold or own any rights to acquire (directly or indirectly) any equity interests

of Epic or the Company or any equity securities convertible into, or which can be exchanged for, equity securities of Epic or the Company.

(b)If Stockholder is a corporation, limited liability company, partnership, trust, proprietorship or other legal entity, it has all requisite power and authority (or, if Stockholder is a natural person, Stockholder has the legal capacity) to execute and deliver this Agreement and to consummate the transactions contemplated hereby and to perform all of its obligations hereunder. The execution and delivery of this Agreement have been, and the consummation of the transactions contemplated hereby has been, duly authorized by all requisite action by Stockholder. This Agreement has been duly and validly executed and delivered by Stockholder and, assuming this Agreement has been duly authorized, executed and delivered by the other parties hereto, this Agreement constitutes, and upon its execution will constitute, a legal, valid and binding obligation of Stockholder enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and other similar Laws affecting the enforceability of creditors’ rights generally, general equitable principles and the discretion of courts in granting equitable remedies. If Stockholder is a corporation, limited liability company, partnership, trust, proprietorship or other legal entity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of Stockholder.

(c)There are no Actions pending against Stockholder, or, to the knowledge of Stockholder, threatened against Stockholder, by or before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, that would, in any manner, reasonably be expected to challenge or seek to enjoin, alter or materially delay the performance by Stockholder of its obligations under this Agreement.

(d)The execution and delivery of this Agreement by Stockholder does not, and the performance by Stockholder of its obligations hereunder will not, (i) to the extent Stockholder is a corporation, limited liability company, partnership, trust, proprietorship or other legal entity, conflict with or result in a violation of the Organizational Documents of Stockholder or (ii) require any consent or approval that has not been given or other action that has not been taken by any Person (including under any Contract binding upon Stockholder or the Stockholder Securities), in each case, to the extent such consent, approval or other action would reasonably be expected to prevent, enjoin or materially delay the performance by Stockholder of its obligations under this Agreement.

(e)No broker, finder, investment banker or other Person is entitled to any brokerage fee, finders’ fee or other commission in connection with the transactions contemplated by the BCA based upon arrangements made by Stockholder, for which SPAC, the Target Companies or any of their respective Affiliates may become liable.

(f)Stockholder understands and acknowledges that each of SPAC and the Target Companies is entering into the BCA in reliance upon Stockholder’s execution and delivery of this Agreement.

4.Stockholder Agreements. Unless and until this Agreement is terminated in accordance with Section 6, Stockholder hereby unconditionally and irrevocably agrees:

(a)at any meeting of the stockholders of Epic or the Company (including any adjournment thereof), or in any other circumstance in which the vote, consent or other approval of the stockholders or other equity holders of Epic or the Company is sought, including in any action by written resolution of the stockholders of Epic or the Company, to be present in person or by proxy (in the case of any meeting or adjournment) and vote or provide consent to, or cause to be voted or consented to at such meeting, adjournment or pursuant to such action, all Stockholder Securities entitled to vote thereon in favor of, and to adopt and approve, the BCA and the transactions contemplated thereunder;

(b)at any meeting of the stockholders of Epic or the Company (including any adjournment thereof ), or in any other circumstance in which the vote, consent or other approval of the stockholders or other equity holders of Epic or the Company is sought, including in any action by written resolution of the stockholders of Epic or the Company, to be present in person or by proxy (in the case of any meeting or adjournment) and vote or provide consent to, or cause to be voted or consented to at such meeting, adjournment, or pursuant to such action, all Stockholder Securities entitled to vote thereon against, and withhold consent with respect to (i) any Alternative Proposal or other proposal relating to an Alternative Proposal other than the transactions contemplated under the BCA; (ii) any merger, consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of Epic or the Company other than as contemplated under the BCA; (iii) any change in the business, management or board of directors of Epic or the Company other than as contemplated under the BCA; and (iv) any other action, proposal or agreement that would be reasonably expected to (1) impede, frustrate, prevent, nullify, interfere with, delay, postpone, adversely affect, be in direct opposition to, or be in direct competition with, the transactions contemplated under the BCA, in each case, other than the proposal to adjourn or postpone any meeting of the stockholders or other equity holders of Epic or the Company, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt the transactions contemplated under the BCA, (2) result in a breach of any covenant, representation or warranty or other obligation or agreement of Epic, the Company, or, before the SPAC Merger, Merger Sub 2 or Flexjet, under the BCA, (3) result in a breach of any covenant, representation or warranty or other obligation or agreement of Stockholder contained in this Agreement, (4) result in any of the conditions precedent set forth in Section 9.1 and Section 9.2 of the BCA not being fulfilled or (5) change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, Epic or the Company, other than as contemplated under the BCA;

(c)if a meeting is held in respect of the matters set forth in clauses (a) or (b) above, to appear at the meeting, in person or by proxy, or otherwise cause all of the Stockholder Securities to be counted as present thereat for purposes of establishing a quorum, and, if action by written resolution is sought in respect of the matters set forth in clauses (a) or (b) above, to execute and deliver a written consent (or cause a written consent to be executed and delivered) covering all of the Stockholder Securities; and

(d)to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all things reasonably necessary under applicable Laws to consummate the Transactions and the other transactions contemplated by the BCA on the terms and subject to the conditions set forth therein, and not to commit or agree to take any action inconsistent with the foregoing.

From the date hereof until the Termination Date, Stockholder hereby agrees that it shall not commit, agree, or publicly propose any intention to take any action inconsistent with the foregoing. The obligations of the Stockholder specified in this Section 4 will apply whether or not the board of directors of Epic or the Company, as applicable, has previously recommended any of the transactions contemplated by the BCA to the stockholders thereof but changed such recommendations.

5.Other Covenants.

(a) Stockholder hereby acknowledges that it has read the BCA and this Agreement and has had the opportunity to consult with its tax and legal advisors. From the date hereof until the Termination Date, Stockholder hereby agrees to be bound by and subject to (i) Section 8.3 (Support of the Transaction) and Section 11.14 (Publicity) of the BCA, and any relevant definitions contained in such Sections, to the same extent as such provisions apply to the parties to the BCA, as if Stockholder is directly a party thereto, and (ii) Section 6.5 (Acquisition Proposals) of the BCA, and any relevant definitions contained in such Sections, to the same extent as such provisions apply to the Target Companies (but for the avoidance of doubt, without expanding the definition of “Alternative Proposal”), as if Stockholder is directly a party thereto and, for the avoidance of doubt, for purposes of this Section 5(a), each reference to “Target Companies” contained in Section 6.5 of the BCA (other than Section 6.5(b)) shall be deemed to also refer to Stockholder.

(b)To the extent Stockholder is to be a party to the Registration Rights Agreement, on the Closing Date, Stockholder shall deliver to Flexjet a duly executed copy of the Registration Rights Agreement, in substantially the form attached as Exhibit C to the BCA.

(c)To the extent Stockholder is to be a party to the Stockholders Agreement, on the Closing Date, Stockholder shall deliver to Flexjet a duly executed copy of the Stockholders Agreement, in substantially the form attached as Exhibit D to the BCA.

(d)Stockholder acknowledges and agrees that SPAC and Merger Sub 1 are entering into the BCA in reliance upon Stockholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement and but for Stockholder entering into this Agreement and agreeing to be bound by, and perform, or otherwise comply with, as applicable, the agreements, covenants and obligations contained in this Agreement, SPAC and Merger Sub 1 would not have entered into, or agreed to consummate the transactions contemplated by, the BCA.

(e)During the period commencing on the date hereof and ending on the earlier of the consummation of the Closing and the termination of the BCA pursuant to Article X thereof, Stockholder shall not modify or amend any Contract between or among Stockholder or any Affiliate of Stockholder (other than the Target Companies or any of their Subsidiaries), on the one hand, and any Target Company or any of its respective Subsidiaries, on the other hand, in any manner that any Target Company is prohibited from modifying or amending any such Contract under the BCA without the prior written consent of SPAC, without Stockholder first obtaining the prior written consent of SPAC.

6.Termination. This Agreement shall automatically terminate, without any notice or other action by any party hereto, and have no further force and effect, upon the earliest of (i) the consummation of the Closing, (ii) the valid termination of the BCA in accordance with its terms, (iii) the dissolution, liquidation or winding up of SPAC or the Target Companies, and (iv) the time this Agreement is terminated upon the mutual written agreement of SPAC, Stockholder and the Target Companies (the earliest such date under clause (i), (ii), (iii) and (iv) being referred to herein as the “Termination Date”). Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement. Notwithstanding the foregoing or anything to the contrary in this Agreement, the termination of this Agreement pursuant to clauses (ii), (iii) or (iv) of this Section 6 shall not affect any liability on the part of any party hereto for a willful breach of any covenant or agreement set forth in this Agreement prior to such termination or Fraud, and this Section 6 and Section 10 through (and including) Section 15 (other than with respect to the application of Section 11.18 of the BCA to apply mutatis mutandis to this Agreement in Section 14) shall survive any termination of this Agreement.

7. No Inconsistent Agreement. Stockholder hereby represents and covenants that Stockholder has not entered into, and shall not enter into, any agreement that would restrict, limit or interfere with the performance of Stockholder’s obligations hereunder.

8.No Challenges. From the date hereof until the Termination Date, Stockholder agrees not to commence, join in, facilitate, assist or encourage, and agrees to take all actions within its power necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against SPAC, Merger Sub 1, the Target Companies or any of their respective successors or directors (except in any case arising out of the fraud of such parties) (a) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (b) alleging a breach of any fiduciary duty of any person in connection with the evaluation, negotiation or entry into the BCA. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit Stockholder from enforcing Stockholder’s rights under this Agreement and the other agreements entered into by Stockholder in connection herewith, or otherwise in connection with the Mergers or the other transactions contemplated by the BCA.

9.Consent to Disclosure. Stockholder hereby consents to the publication and disclosure in the Proxy Statement/Prospectus or Registration Statement (and, as and to the extent otherwise required by applicable securities Laws or the SEC or any other securities authorities, any other documents or communications provided by SPAC or any of the Target Companies to any Governmental Authority or to securityholders of Epic or the Company) of Stockholder’s identity and beneficial ownership of Stockholder Securities and the nature of Stockholder’s commitments, arrangements and understandings under and relating to this Agreement and, if deemed reasonably appropriate by SPAC or any of the Target Companies, a copy of this Agreement. Stockholder will promptly provide any information reasonably requested by SPAC or any of the Target Companies for any regulatory application or filing made or approval sought in connection with the transactions contemplated by the BCA, including any approval or filing specifically set forth in the BCA (including filings with the SEC), except for any information that is subject to attorney-client privilege or confidentiality obligations (provided, that with respect to any confidentiality obligations, (a) Stockholder will use its commercially reasonable efforts to obtain a waiver of any such confidentiality obligations and (b) Stockholder, SPAC and the Target Companies shall cooperate in good faith to enable disclosure of such information to the maximum extent possible in a manner that complies with such confidentiality obligations).

10.Notices. Any notice or communication required or permitted hereunder shall be in writing and either delivered personally, emailed or sent by overnight mail via a reputable overnight carrier, or sent by certified or registered mail, postage prepaid, and shall be deemed to be given and received (i) when so delivered personally, (ii) when sent, with no mail undeliverable or other rejection notice, if sent by email, or (iii) three Business Days after the date of mailing to the address below or to such other address or addresses as such person may hereafter designate by notice given hereunder:

if to SPAC, to:

600 Steamboat Road, Suite 200
Greenwich, CT 06830
Attention: General Counsel

with a required copy to (which copy shall not constitute notice):

Sidley Austin LLP
787 Seventh Avenue
New York, New York 10019
Email:               mpollin@sidley.com
Attention:       Myles Pollin

and

Sidley Austin LLP
2021 McKinney Avenue, Suite 2000

Dallas, Texas 75201
Email:             bhowell@sidley.com

rscofield@sidley.com

Attention:     Bill Howell

Ryan Scofield

if to Epic or Flexjet, to:

Epic Aero, Inc.

Cuyahoga County Airport

26180 Curtiss Wright Parkway

Cleveland, Ohio 44143

Attention:         Michael A. Rossi

with a required copy to (which copy shall not constitute notice):

White & Case LLP
1221 Avenue of the Americas
New York, NY 10020-1095
Attention:             Joel Rubinstein

Daniel Nussen

Matthew Kautz

Neeta Sahadev

Email:                      joel.rubinstein@whitecase.com

daniel.nussen@whitecase.com

mkautz@whitecase.com

neeta.sahadev@whitecase.com

if to Stockholder, to the address set forth on Stockholder’s signature page hereto.

11.Counterparts. This Agreement may be executed and delivered in counterparts (including by facsimile or electronic transmission), each of which shall constitute an original, and all of which when taken together shall constitute one and the same agreement.

12.Amendment. This Agreement may not be amended, changed, supplemented, waived or otherwise modified or terminated, except upon the execution and delivery of a written agreement executed by the parties hereto.

13.Assignment and Successors. Except as may be expressly permitted by Section 2, neither this Agreement nor any rights, interests or obligations hereunder may be assigned without the prior written consent of the non-assigning parties hereto. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

14.Miscellaneous. Sections 1.2 (Construction); 11.1 (Trust Account Waiver), 11.9 (Governing Law), 11.15 (Severability), 11.16 (Jurisdiction; Waiver of Jury Trial) and 11.18 (Other Remedies; Specific Enforcement) of the BCA are incorporated by reference herein and shall apply hereto mutatis mutandis.

15. Entire Agreement; No Third Party Beneficiaries. This Agreement, together with the BCA, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral, among the parties hereto with respect to the subject matter hereof. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any Person, other than the parties hereto, any right or remedies under or by reason of this Agreement; provided, that, notwithstanding the foregoing, from and upon the Company’s execution of a joinder to the BCA, the Company (a) shall be an intended third party beneficiary of this Agreement and (b) may directly enforce (including by an action for specific performance, injunctive relief or other equitable relief) this Agreement as though a direct party hereto.

* * * * *

IN WITNESS WHEREOF, each of the parties has duly executed this Agreement as of the date first written above.

HORIZON ACQUISITION CORPORATION II
By:	/s/ Todd L. Boehly
Name:	Todd L. Boehly
Title:	Chief Executive Officer and Chairman

Signature Page to Company Support Agreement

EPIC AERO, INC.
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	Chairman and President
FLEXJET, INC.
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	Chairman and President

Signature Page to Company Support Agreement 

STOCKHOLDER:
EPIC PREFERRED HOLDINGS LLC
By:	/s/ Todd L. Boehly
Name:	Todd L. Boehly
Title:	Chief Executive Officer

Address:	600 Steamboat Road, Suite 200
	Greenwich, Connecticut 06830
	Attention: General Counsel

Number of shares of Epic Common Stock:
Number of shares of Epic Preferred Stock:	7,784.360

STOCKHOLDER:
EPIC PREFERRED HOLDINGS II LLC
By:	/s/ Todd L. Boehly
Name:	Todd L. Boehly
Title:	Chief Executive Officer

Address:	600 Steamboat Road, Suite 200
	Greenwich, Connecticut 06830
	Attention: General Counsel

Number of shares of Epic Common Stock:
Number of shares of Epic Preferred Stock:	27,544.337

STOCKHOLDER:
ELDRIDGE EA HOLDINGS, LLC
By:	/s/ Todd L. Boehly
Name:	Todd L. Boehly
Title:	Chief Executive Officer

Address:	600 Steamboat Road, Suite 200
	Greenwich, Connecticut 06830
	Attention: General Counsel

Number of shares of Epic Common Stock:
Number of shares of Epic Preferred Stock:	35,797.000

STOCKHOLDER:
DIRECTIONAL CAPITAL LLC
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	Manager

Address:	355 Richmond Road
	Cleveland, Ohio 44143

Number of shares of Epic Common Stock:	43,364.405
Number of shares of Epic Preferred Stock:	5,318.908

STOCKHOLDER:

Kenneth Ricci

/s/ Kenneth C. Ricci

Address:

Number of shares of Epic Common Stock:	4,521.510
Number of shares of Epic Preferred Stock:	N/A

STOCKHOLDER:

Michael Rossi

/s/ Michael Rossi

Address:

Number of shares of Epic Common Stock:	1,875.000
Number of shares of Epic Preferred Stock:	N/A

STOCKHOLDER:
RESILIENCE HOLDINGS LLC
By:	/s/ Steven H. Rosen
Name:	Steven H. Rosen
Title:	Co-President

Address:	25101 Chagrin Boulevard, Suite 350
	Cleveland, Ohio 44122

Number of shares of Epic Common Stock:	7,725.420
Number of shares of Epic Preferred Stock:	N/A

STOCKHOLDER:
RESILIENCE ONESKY HOLDINGS, LLC
By: Resilience Capital Partners II (FO) LLC, its Managing Member
By: Resilience Management, LLC, its Managing Member
By:	/s/ Steven H. Rosen
Name:	Steven H. Rosen
Title:	Co-CEO

Address:	25101 Chagrin Boulevard, Suite 350
	Cleveland, Ohio 44122

Number of shares of Epic Common Stock:	3,228.124
Number of shares of Epic Preferred Stock:	N/A

STOCKHOLDER:
RESILIENCE FLIGHT OPTIONS, LLC
By: Resilience Management, LLC, its Managing Member
By:	/s/ Steven H. Rosen
Name:	Steven H. Rosen
Title:	Co-CEO

Address:	25101 Chagrin Boulevard, Suite 350
	Cleveland, Ohio 44122

Number of shares of Epic Common Stock:	5,020.070
Number of shares of Epic Preferred Stock:	N/A

STOCKHOLDER:
THE RESILIENCE FUND II ANNEX, L.P.
By: its general partner Resilience Capital Partners II Annex, LLC
By:	/s/ Steven H. Rosen
Name:	Steven H. Rosen
Title:	Managing Member

Address:	25101 Chagrin Boulevard, Suite 350
	Cleveland, Ohio 44122

Number of shares of Epic Common Stock:	11,566.620
Number of shares of Epic Preferred Stock:	N/A

EX-10.5

Exhibit 10.5

Flexjet, Inc.

Cuyahoga County Airport
26180 Curtiss Wright Parkway
Cleveland, Ohio 44143

October 11, 2022

c/o Eldridge Industries, LLC

600 Steamboat Road, Suite 200

Greenwich, CT 06830

Attention: General Counsel

Re:         Eldridge Back-Stop Letter Agreement

Ladies and Gentleman:

Reference is made to that certain Business Combination Agreement (as amended, supplemented and restated from time to time, the “BCA”), dated as of the date hereof, by and among Flexjet, Inc. (“Flexjet”), Horizon Acquisition Corporation II (“SPAC”), and the other parties thereto. Capitalized terms used herein but not otherwise defined shall have the meanings given to them in the BCA.

On the terms and subject to the conditions set forth in this letter agreement (this “Agreement”), Eldridge hereby commits and agrees to execute and deliver, or to cause one of its Affiliates to execute and deliver, a Subscription Agreement, substantially in the form attached hereto as Exhibit A (or such other form as is contemplated by Section 1, the “Subscription Agreement”) pursuant to which it shall purchase shares of Flexjet Common Stock, par value $0.0001 per share (the shares of Flexjet Common Stock to be purchased by Eldridge or its Affiliate under the Subscription Agreement, the “Eldridge Subscribed Stock”), at a purchase price of $10.00 per Flexjet Common Stock, for an aggregate purchase price equal to the aggregate amount payable with respect to all SPAC Share Redemptions up to $145,000,000 (the “Back-Stop Amount”). The Back-Stop Amount shall be reduced dollar-for-dollar to the extent the sum of (x) the aggregate amount of subscriptions for shares of Flexjet Common Stock made by additional PIPE Investors other than Eldridge or any of its Affiliates after the date hereof and (y) the Back-Stop Amount would exceed $275,000,000 in the aggregate. Eldridge shall not, under any circumstances, be obligated to purchase, or to cause any of its Affiliates to purchase, any shares of Flexjet Common Stock for an aggregate purchase price in excess of $145,000,000 in connection with this Agreement.

In consideration of the covenants and agreements contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agrees as follows:

1.Back-Stop. Each of Eldridge and Flexjet hereby agrees that (a) it shall deliver to the other a duly executed counterpart to the Subscription Agreement signed by it (or, in the case of Eldridge, one of its Affiliates) for an aggregate purchase price payable by Eldridge (or its applicable Affiliate) equal to the Back-Stop Amount by no later than promptly following and on the same Business Day as the SPAC Shareholders’ Meeting (but in no event earlier than any subscription agreement executed by Flexjet and any Third Party Investor (as defined below)), and (b) Flexjet shall deliver to Eldridge or its applicable Affiliate the Eldridge Subscribed Stock pursuant and subject to the terms and conditions of the Subscription Agreement. Flexjet and Eldridge each acknowledge and agree that, following the date hereof, Flexjet is expected to seek to enter into one or more subscription agreements with certain additional PIPE Investors (such potential investors who may subscribe, the “Third Party Investors”). In connection therewith, it is contemplated that the form of subscription agreement initially provided to the Third Party Investors will be in the same form as the Subscription Agreement, but that the Third Party Investors may require amendment or modification of the terms of the form of subscription agreement as a condition to the execution and delivery thereof. To the extent that the subscription agreement entered into by any Third Party Investor is so amended or modified, then the Subscription Agreement executed and delivered by Eldridge or its applicable Affiliate pursuant to this Agreement shall be amended or modified in the same manner such that Eldridge or its applicable Affiliate will sign and deliver the same form of subscription agreement as the Third Party Investors, other than with respect to the $10 purchase price per share of Flexjet Common Stock to be purchased by Eldridge or its Affiliate as described in this Agreement which shall not be amended or modified.

2.Back-Stop Commitment Fee. As consideration for the obligation of Eldridge hereunder to enter into the Subscription Agreement and to purchase the Eldridge Subscribed Stock at the Closing thereunder, Flexjet agrees to pay to Eldridge at the Closing a fee equal to 3% of the Back-Stop Amount actually funded by Eldridge or its Affiliates under the Subscription Agreement (the “Back-Stop Commitment Fee”). The Back-Stop Commitment Fee shall be offset against the Back-Stop Amount payable by Eldridge or its applicable Affiliate under the Subscription Agreement. Any amount of the Back-Stop Commitment Fee that is payable in cash shall be considered a Company Transaction Expense payable by Flexjet to Eldridge at the Closing in accordance with the terms of the BCA.

3.Eldridge Representations and Warranties. Eldridge represents and warrants to Flexjet that:

(a)Eldridge (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and (ii) has the requisite power and authority to enter into, deliver and perform its obligations under this Agreement.

(b)This Agreement has been duly authorized, executed and delivered by Eldridge, and, assuming the due authorization, execution and delivery of the same by Flexjet, this Agreement shall constitute the valid and legally binding obligation of Eldridge, enforceable against Eldridge in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.

(c)The execution, delivery and performance by Eldridge of this Agreement, the purchase of the Eldridge Subscribed Stock (if applicable) and the compliance by Eldridge with all of the provisions of this Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Eldridge pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Eldridge is a party or by which Eldridge is bound or to which any of the property or assets of Eldridge is subject; (ii) the organizational documents of Eldridge; or (iii) any statute or any judgment, order, rule or regulation of any court or Governmental Authority or body, domestic or foreign, having jurisdiction over Eldridge or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have an Eldridge Material Adverse Effect. For purposes of this Agreement, an “Eldridge Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Eldridge that would reasonably be expected to have a material adverse effect on Eldridge’s ability to consummate the transactions contemplated hereby, including the purchase of the Eldridge Subscribed Stock (if applicable).

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(d)Eldridge (i) is (x) an Institutional Account as defined in FINRA Rule 4512(c) and (y) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) under the Securities Act), (ii) is acquiring the Eldridge Subscribed Stock (if applicable) only for its own account and not for the account of others, or, if Eldridge is subscribing for the Eldridge Subscribed Stock as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer or an institutional accredited investor and Eldridge has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Eldridge Subscribed Stock (if applicable) with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act. Eldridge is not an entity formed for the specific purpose of acquiring the Eldridge Subscribed Stock, unless such newly formed entity is an entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c).

(e)Eldridge understands that the Eldridge Subscribed Stock is being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Eldridge Subscribed Stock has not been registered under the Securities Act. Eldridge understands that if it acquires Eldridge Subscribed Stock under the Subscription Agreement, such Eldridge Subscribed Stock may not be offered, resold, transferred, pledged or otherwise disposed of by Eldridge absent an effective registration statement under the Securities Act, except (i) to Flexjet or a subsidiary thereof, or (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of cases (i) and (ii), in accordance with any applicable securities Laws of the applicable states and other jurisdictions of the United States, and as a result of these transfer restrictions, Eldridge may not be able to readily resell the Eldridge Subscribed Stock and may be required to bear the financial risk of an investment in the Eldridge Subscribed Stock for an indefinite period of time. Eldridge acknowledges and agrees that the Eldridge Subscribed Stock will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”), absent a change in law, receipt of regulatory no-action relief or an exemption, until at least one year from the filing of certain required information with the SEC after the Closing Date. Eldridge understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Eldridge Subscribed Stock.

(f)Eldridge understands that each book entry for the Eldridge Subscribed Stock shall contain a notation in substantially the following form:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1) AGREES FOR THE BENEFIT OF FLEXJET, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

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(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER, OR

(C) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER, THE COMPANY AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

(g)Eldridge understands and agrees that Eldridge is purchasing the Eldridge Subscribed Stock (if applicable) directly from Flexjet. Eldridge further acknowledges that there have not been, and Eldridge hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to Eldridge by Flexjet, any Participant Company (as defined below), any of their respective Affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the transactions contemplated herein or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Flexjet to be included in the Subscription Agreement. Eldridge acknowledges that certain information provided by Flexjet was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Eldridge further acknowledges that the information provided to Eldridge was preliminary and subject to change, including in the Registration Statement that Flexjet intends to file with the SEC (which will include substantial additional information about the Flexjet, the Participant Companies and the Transactions and will update and supersede the information previously provided to Eldridge).

(h)In making its decision to purchase the Eldridge Subscribed Stock on the terms and subject to the conditions set forth in this Agreement, Eldridge has relied solely upon independent investigation made by Eldridge and the representations and warranties made by Flexjet to be included in the Subscription Agreement. Eldridge acknowledges and agrees that Eldridge has received such information as Eldridge deems necessary in order to make an investment decision with respect to the Eldridge Subscribed Stock, including with respect to Flexjet, SPAC, Epic Aero, Inc., the other parties to the BCA and their respective current and future subsidiaries (collectively, the “Participant Companies”) and the transactions contemplated herein.

(i)Eldridge represents and agrees that Eldridge and Eldridge’s professional advisors, if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Eldridge and such undersigned’s professional advisors, if any, have deemed necessary to make an investment decision with respect to the Eldridge Subscribed Stock. Without limiting the generality of the foregoing, Eldridge acknowledges that it has reviewed SPAC’s filings with the SEC.

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(j) Eldridge acknowledges that (i) Flexjet currently may have, and later may come into possession of, information regarding Flexjet that is not known to Eldridge and that may be material to a decision to enter into this transaction (“Excluded Information”), (ii) Eldridge has determined to enter into this transaction notwithstanding its lack of knowledge of the Excluded Information, and (iii) no Participant Company shall have liability to Eldridge, and Eldridge hereby to the extent permitted by law waives and releases any claims it may have against the Participant Companies with respect to the nondisclosure of the Excluded Information.

(k)Eldridge became aware of this offering of the Eldridge Subscribed Stock solely by means of direct contact between Eldridge and a Participant Company or one of its respective representatives or Affiliates and the Eldridge Subscribed Stock was offered to Eldridge solely by direct contact between Eldridge and the applicable Participant Company (or its respective representative or Affiliate). Eldridge did not become aware of this offering of the Eldridge Subscribed Stock, nor was the Eldridge Subscribed Stock offered to Eldridge, by any other means. Eldridge acknowledges that the Eldridge Subscribed Stock (i) was not offered by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) is not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.

(l)Eldridge acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Eldridge Subscribed Stock, including those set forth in SPAC’s filings with the SEC and the investor presentation dated October 2022 made available to Eldridge by Flexjet prior to the execution of this Agreement. Eldridge understands the significant extent to which certain of the disclosures contained in SPAC’s filings with the SEC prior to the date hereof shall not apply following the consummation of the Transaction. Eldridge has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Eldridge Subscribed Stock, and Eldridge has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Eldridge has considered necessary to make an informed investment decision. No Participant Company nor any of its respective Affiliates has offered Eldridge any tax advice relating to Eldridge’s potential investment in the Eldridge Subscribed Stock, or made any representations, warranties or guarantees regarding the tax consequences of Eldridge’s potential investment in the Eldridge Subscribed Stock.

(m)Alone, or together with any professional advisors, Eldridge has adequately analyzed and fully considered the risks of an investment in the Eldridge Subscribed Stock and determined that the Eldridge Subscribed Stock are a suitable investment for Eldridge and that Eldridge is able at this time and in the foreseeable future to bear the economic risk of a total loss of Eldridge’s investment in Flexjet. Eldridge acknowledges specifically that a possibility of total loss exists.

(n)Eldridge understands and agrees that no federal or state agency or any other government or Governmental Authority (whether foreign or domestic) has passed upon or endorsed the merits of the offering of the Eldridge Subscribed Stock or made any findings or determination as to the fairness of this investment.

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(o)Eldridge is not, and is not owned or controlled by or acting on behalf of (in connection with the transactions contemplated hereby), a Sanctioned Person. Eldridge is not a non-U.S. shell bank or providing banking services to a non-U.S. shell bank. Eldridge represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001 and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Eldridge maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Eldridge also represents that, to the extent required by applicable law, it maintains, either directly or through the use of a third-party administrator, policies and procedures reasonably designed for the screening of any investors against Sanctions-related lists of blocked or restricted persons. Eldridge further represents and warrants that the funds held by Eldridge and used to purchase the Eldridge Subscribed Stock (if applicable) will be derived from lawful activities. For purposes of this Agreement, “Sanctioned Person” means at any time any person or entity: (i) listed on any Sanctions-related list of designated or blocked or restricted persons, (ii) that is a national of, the government of, or any agency or instrumentality of the government of, or resident in, or organized under the laws of, a country or territory that is the target of comprehensive Sanctions from time to time (as of the date of this Agreement, Cuba, Iran, North Korea, Syria, and the Crimea region) or (iii) owned or controlled by or acting on behalf of any of the foregoing. “Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (A) the United States (including without limitation the U.S. Department of the Treasury, Office of Foreign Assets Control, the U.S. Department of State, and the U.S. Department of Commerce), (B) the European Union and enforced by its member states, (C) the United Nations and (D) Her Majesty’s Treasury.

(p)Eldridge, together with its Affiliates that will hold the Eldridge Subscribed Stock (if applicable), are not currently (and at all times through the Closing will refrain from being or becoming) members of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) acting for the purpose of acquiring, holding, voting or disposing of equity securities of Flexjet (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).

(q)No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in Flexjet as a result of the purchase and sale of Eldridge Subscribed Stock under the Subscription Agreement (if applicable) such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over Flexjet from and after the Closing as a result of the purchase and sale of Eldridge Subscribed Stock under the Subscription Agreement (if applicable).

(r)If Eldridge is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Eldridge represents and warrants that (i) neither Flexjet, nor any of its respective Affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Eldridge Subscribed Stock (if applicable), and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Eldridge Subscribed Stock (if applicable) and (ii) the acquisition and holding of the Eldridge Subscribed Stock (if applicable) will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code.

(s)At the applicable date, Eldridge or its applicable Affiliate will have sufficient funds to pay the Back-Stop Amount.

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(t) No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the entry into this Agreement by Eldridge or performance of its obligations hereunder.

(u)At all times at or prior to the Closing, Eldridge has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Eldridge Subscribed Stock.

(v)Eldridge acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Participating Companies.

4.Miscellaneous.

a.This Agreement shall terminate automatically and immediately (without prejudice to any claims that may arise before such termination) upon the earliest of:

i. the mutual written agreement of Flexjet and Eldridge;

ii. the due execution and delivery of the Subscription Agreement by each of the parties thereto; and

iii. the date on which the BCA is terminated or otherwise expires in accordance with its terms.

b.This Agreement and the rights and obligations of the parties hereunder will be governed by and construed under and in accordance with the laws of the State of Delaware without regard to the conflict of law rules or principles thereof. Each party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware, and any appellate court therefrom, in any action or proceeding arising out of or relating to this Agreement or for recognition or enforcement of any judgment relating thereto, and each of the parties hereto hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in such courts, (ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in such court, (iii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in any such court, and (iv) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. Each party hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party hereto hereby knowingly, voluntarily and intentionally irrevocably waives the right to a trial by jury with respect to any litigation, dispute, claim, legal action or other legal proceeding based hereon, or arising out of, under, or in connection with, this Agreement. Each party hereto acknowledges and agrees that in the event of a breach of this Agreement, the non-breaching party shall be entitled to, in addition to any other remedy at law or in equity to which they may be entitled, specific performance or other equitable relief, all without the necessity of posting any bond or other security.

c.This Agreement shall be binding solely on, and inure solely to the benefit of, the parties hereto and their respective successors and permitted assigns, and nothing set forth in this Agreement shall be construed to confer upon or give to any person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce any provisions of this Agreement.

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d. This Agreement supersedes any prior written or oral understanding or agreements between the parties hereto related to the subject matter hereof (other than any confidentiality agreement, non-disclosure agreement or other confidentiality obligation). This Agreement may be amended, modified or supplemented only by written agreement of the parties hereto. The headings set forth in this Agreement are for convenience of reference only and shall not be used in interpreting this Agreement. This Agreement may be executed in any number of counterparts (including by facsimile, PDF or other electronic document transmission), each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including via www.docusign.com, PDF and any other electronic signature covered by the U.S. Federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

e.This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as parties hereto, and then only with respect to the specific obligations set forth herein with respect to such party. Without limiting the generality of the foregoing, no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative of any named party to this Agreement and no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney, advisor or representative of any of the foregoing shall have any liability (whether in contract, tort, equity or otherwise) under or for any claim based on, arising out of, or related to this Agreement or the transactions contemplated hereby.

[Remainder of page intentionally left blank]

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Very truly yours,
FLEXJET, INC.
By:	/s/ Kenneth C. Ricci
Name:	Kenneth C. Ricci
Title:	President and Chairman

Signature Page to Eldridge Back-Stop Letter Agreement 

Accepted and agreed:
ELDRIDGE INDUSTRIES, LLC
By:	/s/ Todd L. Boehly
Name: Todd L. Boehly
Title Chief Executive Officer

Signature Page to Eldridge Back-Stop Letter Agreement 

Exhibit A

Form of Subscription Agreement

Please see attached.

Exhibit A to Eldridge Back-Stop Letter Agreement 

FORM OF

SUBSCRIPTION AGREEMENT

This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on [●], 202[●], by and between Flexjet, Inc., a Delaware corporation (“Flexjet”) and the undersigned subscriber (“Subscriber”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the BCA (as defined below).

WHEREAS, Flexjet entered into that certain Business Combination Agreement, dated as of October 11, 2022, by and among Flexjet, Epic Aero, Inc., Horizon Acquisition Corporation II (the “SPAC”), and the other parties thereto (as amended, supplemented or otherwise modified from time to time, the “BCA”);

WHEREAS, in connection with the transactions contemplated by the BCA, Subscriber desires to subscribe for and purchase from Flexjet, that number of shares of Flexjet Common Stock set forth on the signature page hereto (the “Subscribed Shares”) for a purchase price of $10.00 per share (the “Per Share Price” and the aggregate of such Per Share Price for all Subscribed Shares being referred to herein as the “Purchase Price”), and at the Closing, Flexjet desires to issue and sell to Subscriber the Subscribed Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to Flexjet, all on the terms and subject to the conditions set forth herein; and

WHEREAS, on or prior to the Closing, Flexjet is entering into subscription agreements (the “Other Subscription Agreements” and together with this Subscription Agreement, the “Subscription Agreements”) with certain other investors (the “Other Subscribers” and together with Subscriber, the “Subscribers”), pursuant to which such Other Subscribers have agreed to subscribe for and purchase from Flexjet, and Flexjet desires to issue and sell to the Other Subscribers at the Closing, shares of Flexjet Common Stock at the Per Share Price (the shares of the Other Subscribers, the “Other Subscribed Shares”).

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

Section 1.Subscription. Subject to the terms and conditions hereof, Subscriber hereby irrevocably subscribes for and agrees to purchase, and Flexjet hereby agrees to issue and sell to Subscriber upon the payment of the Purchase Price, in each case, at the Closing, the Subscribed Shares (such subscription and issuance, the “Subscription”).

Section 2.Closing; Delivery of Shares; Conditions.

(a)The consummation of the Subscription and the transactions contemplated hereby shall occur substantially simultaneously with, and be conditioned upon the occurrence of, the Closing. The date on which the closing of the transactions contemplated herein occurs is referred to as the “Subscription Closing Date”.

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(b)At least five Business Days before the anticipated Subscription Closing Date, Flexjet shall deliver written notice to Subscriber (the “Closing Notice”) specifying (i) the anticipated Subscription Closing Date and (ii) the wire instructions for delivery of the Purchase Price to Flexjet. No later than three Business Days prior to the Subscription Closing Date set forth in the Closing Notice, Subscriber shall deliver the Purchase Price for the Subscribed Shares by wire transfer of United States dollars in immediately available funds to the account specified by Flexjet in the Closing Notice, such funds to be held by Flexjet in trust for the benefit of Subscriber until the Closing (with Subscriber being treated as the beneficial owner of the Purchase Price until the Closing). Upon satisfaction (or, if applicable, waiver) of the conditions set forth in Sections 2(d), 2(e) and 2(f), Flexjet shall deliver to Subscriber (i) at the Closing, the Subscribed Shares in book entry form, free and clear of any liens or other restrictions (other than those arising under this Subscription Agreement or applicable securities Laws), in the name of Subscriber (or its nominee identified to Flexjet in writing no less than one Business Day prior to the Closing), and (ii) as promptly as practicable after the Closing, evidence from Flexjet’s transfer agent of the issuance to Subscriber of the Subscribed Shares (in book entry form and containing customary restrictive legends) on and as of the Subscription Closing Date. Upon delivery of the Subscribed Shares to Subscriber (or its nominee, if applicable), in accordance with Section 2(b)(i), the Purchase Price shall cease to be held by Flexjet in trust for the benefit of Subscriber and shall be owned by Flexjet.

(c)In the event that (i) the Closing does not occur within five Business Days after the anticipated Subscription Closing Date specified in the Closing Notice or (ii) this Subscription Agreement is terminated prior to the Closing but after Subscriber has funded the Purchase Price in accordance with the Closing Notice, then, in either case, unless otherwise agreed to in writing by Flexjet and Subscriber, Flexjet shall promptly (but in no event later than seven Business Days after the anticipated Subscription Closing Date specified in the Closing Notice or the date on which this Subscription Agreement is terminated, as applicable) return the Purchase Price so delivered by Subscriber to Flexjet by wire transfer in immediately available funds to the account specified in writing by Subscriber to Flexjet, and the Subscribed Shares (and any book entries in respect thereof) shall be deemed cancelled. Notwithstanding any such return or cancellation, unless and until this Subscription Agreement is terminated in accordance with Section 6, Subscriber shall remain obligated (A) to redeliver funds to Flexjet in escrow following Flexjet’s delivery to Subscriber of a new Closing Notice and (B) to consummate the closing of the transactions herein on the Subscription Closing Date in accordance with this Subscription Agreement. For the purposes of this Subscription Agreement, “Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by Law to close.

(d)The closing of the transactions contemplated herein shall be subject to the satisfaction, or valid waiver by each of the parties hereto, of the conditions that, on the Subscription Closing Date:

(i) no suspension of the qualification of the Subscribed Shares for offering or sale or trading in any jurisdiction, or initiation or threatening of any proceedings for any of such purposes, shall have occurred;

(ii) (A) all conditions precedent to the closing of the Transactions set forth in the BCA shall have been satisfied (as determined by the parties to the BCA) or waived (other than those conditions which, by their nature, are to be satisfied at the Closing of the Transactions pursuant to the BCA) and (B) the closing of Company Merger be scheduled to occur substantially concurrently with the closing of the transactions contemplated by this Subscription Agreement; and

(iii) no Governmental Authority shall have issued, enforced or entered any judgment or order, which is then in effect and has the effect of making the consummation of the transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the transactions contemplated hereby.

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(e)The obligation of Flexjet to consummate the transactions contemplated herein shall be subject to the satisfaction or valid waiver by Flexjet of the additional conditions that, on the Subscription Closing Date:

(i) all representations and warranties of Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Closing (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such date (other than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such date), and consummation of the transactions contemplated herein shall constitute a reaffirmation by Subscriber of each of the representations, warranties and agreements of Subscriber contained in this Subscription Agreement as of the Closing; and

(ii) Subscriber shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing.

(f)The obligation of Subscriber to consummate the transactions contemplated herein shall be subject to the satisfaction or valid waiver by Subscriber of the additional conditions that, on the Subscription Closing Date:

(i) all representations and warranties of Flexjet contained in this Subscription Agreement shall be true and correct in all material respects (other than representations and warranties that are qualified as to materiality or Flexjet Material Adverse Effect (as defined herein), which representations and warranties shall be true and correct in all respects) at and as of the Closing (except for representations and warranties that speak as of a specific date, which shall be true and correct in all material respects as of such date (other than representations and warranties that are qualified as to materiality or Flexjet Material Adverse Effect, which representations and warranties shall be true and correct in all respects) as of such date), and consummation of the transactions contemplated herein shall constitute a reaffirmation by Flexjet of each of the representations, warranties and agreements of Flexjet contained in this Subscription Agreement as of the Closing;

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(ii) no amendment of the BCA shall have occurred that would reasonably be expected to materially and adversely affect the economic benefits that Subscriber would reasonably expect to receive under this Subscription Agreement, unless Subscriber has consented in writing to such amendment; and

(iii) Flexjet shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing.

(g)Prior to or at the Closing, Subscriber shall deliver all such other information as is reasonably requested by Flexjet in order for Flexjet to issue the Subscribed Shares to Subscriber, including a duly completed and executed Internal Revenue Service Form W-9 or appropriate Form W-8.

Section 3.Flexjet Representations and Warranties. Flexjet represents and warrants to Subscriber that:

(a)Flexjet (i) is duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has the requisite corporate power and authority to own, lease and operate its properties, to carry on its business as it is now being conducted and to enter into, deliver and perform its obligations under this Subscription Agreement, and (iii) is duly licensed or qualified to conduct its business and, if applicable, is in good standing under the laws of each jurisdiction (other than its jurisdiction of incorporation) in which the conduct of its business or the ownership of its properties or assets requires such license or qualification, except, with respect to the foregoing clause (iii), where the failure to be in good standing would not reasonably be expected to have a Flexjet Material Adverse Effect. For purposes of this Subscription Agreement, a “Flexjet Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Flexjet and its subsidiaries, taken together as a whole (on a consolidated basis), that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on Flexjet’s ability to consummate (A) the transactions contemplated hereby, including the issuance and sale of the Subscribed Shares or (B) the Transactions.

(b)As of the Subscription Closing Date, the Subscribed Shares will be duly authorized and, when issued and delivered to Subscriber against full payment therefor in accordance with the terms of this Subscription Agreement, will be validly issued, fully paid and non-assessable and will not have been issued in violation of or subject to any preemptive or similar rights created under Flexjet’s Organizational Documents (as adopted on or prior to the Subscription Closing Date) or the laws of its jurisdiction of incorporation.

(c)This Subscription Agreement has been duly authorized, executed and delivered by Flexjet, and, assuming the due authorization, execution and delivery of the same by Subscriber, this Subscription Agreement shall constitute the valid and legally binding obligation of Flexjet, enforceable against Flexjet in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights of creditors generally and by the availability of equitable remedies.

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(d)Assuming the accuracy of the representations and warranties of Subscriber, the execution and delivery of this Subscription Agreement, the issuance and sale of the Subscribed Shares and the compliance by Flexjet with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Flexjet pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Flexjet is a party or by which Flexjet is bound or to which any of the property or assets of Flexjet is subject; (ii) the Organizational Documents of Flexjet; or (iii) any statute or any judgment, order, rule or regulation of any court or Governmental Authority or body, domestic or foreign, having jurisdiction over Flexjet or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Flexjet Material Adverse Effect.

(e)Assuming the accuracy of the representations and warranties of Subscriber, Flexjet is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or U.S. federal, state, local or other Governmental Authority, self-regulatory organization (including the New York Stock Exchange (the “Stock Exchange”)) or other person in connection with the execution, delivery and performance by Flexjet of this Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares), other than (i) filings required by applicable local or U.S. state securities laws, (ii) those required to consummate the Transactions as provided under the BCA, including under Section 8.2, (iii) the filing of notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, if applicable, and (iv) filings, the failure of which to obtain would not be reasonably likely to have, individually or in the aggregate, a Flexjet Material Adverse Effect.

(f)Except for such matters as have not had and would not be reasonably likely to have a Flexjet Material Adverse Effect, there is no (i) suit, action, proceeding or arbitration before a Governmental Authority or arbitrator pending, or, to the knowledge of Flexjet, threatened in writing against Flexjet or (ii) judgment, decree, injunction, ruling or order of any Governmental Authority or arbitrator outstanding against Flexjet.

(g)Neither Flexjet nor any person acting on its behalf has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with any offer or sale of the Subscribed Shares.

(h)No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the sale of the Subscribed Shares to Subscriber.

(i)There are no securities or instruments issued by or to which Flexjet is a party containing anti-dilution or similar provisions that will be triggered by the issuance of (i) the Subscribed Shares or (ii) the Other Subscribed Shares to be issued pursuant to any Other Subscription Agreement, in each case, that have not been or will not be validly waived on or prior to the Subscription Closing Date.

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(j)The Other Subscription Agreements reflect (i) the same Per Share Price per Other Subscribed Share and (ii) other terms with respect to the purchase of the Other Subscribed Shares that are no more favorable to the subscriber thereunder than the terms of this Subscription Agreement, other than terms particular to the regulatory requirements of such subscriber or its affiliates or related funds.

Section 4.Subscriber Representations and Warranties. Subscriber represents and warrants to Flexjet that:

(a)If Subscriber is a legal entity, Subscriber (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and (ii) has the requisite power and authority to enter into, deliver and perform its obligations under this Subscription Agreement. If Subscriber is an individual, Subscriber has the legal competence and capacity to enter into, deliver and perform its obligations under this Subscription Agreement.

(b)If Subscriber is a legal entity, this Subscription Agreement has been duly authorized, executed and delivered by Subscriber. If Subscriber is an individual, Subscriber’s signature is genuine and the signatory has the legal competence and capacity to execute this Subscription Agreement. Assuming the due authorization, execution and delivery of the same by Flexjet, this Subscription Agreement shall constitute the valid and legally binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.

(c)The execution, delivery and performance by Subscriber of this Subscription Agreement, the purchase of the Subscribed Shares and the compliance by Subscriber with all of the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of Subscriber pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which Subscriber is a party or by which Subscriber is bound or to which any of the property or assets of Subscriber is subject; (ii) if Subscriber is a legal entity, the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or Governmental Authority or body, domestic or foreign, having jurisdiction over Subscriber or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Subscriber Material Adverse Effect. For purposes of this Subscription Agreement, a “Subscriber Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to Subscriber that would reasonably be expected to have a material adverse effect on Subscriber’s ability to consummate the transactions contemplated hereby, including the purchase of the Subscribed Shares.

(d)Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (ii) is acquiring the Subscribed Shares only for its own account and not for the account of others, or, if Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, each owner of such account is a qualified institutional buyer or an accredited investor and Subscriber has full investment discretion with respect to each such account, and the full power and authority to make the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act (and has provided Flexjet with the requested information on Annex A following the signature page hereto). Subscriber is not an entity formed for the specific purpose of acquiring the Subscribed Shares, unless such newly formed entity is an entity in which all of the equity owners are accredited investors and is an “institutional account” as defined by FINRA Rule 4512(c).

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(e)Subscriber understands that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Subscribed Shares have not been registered under the Securities Act and that the Company is not required to register the Subscribed Shares except as set forth in Section 5. Subscriber understands that the Subscribed Shares may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except (i) to Flexjet or a subsidiary thereof, or (ii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of cases (i) and (ii), in accordance with any applicable securities Laws of the applicable states and other jurisdictions of the United States, and as a result of these transfer restrictions, Subscriber may not be able to readily resell the Subscribed Shares and may be required to bear the financial risk of an investment in the Subscribed Shares for an indefinite period of time. Subscriber acknowledges and agrees that the Subscribed Shares will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”), absent a change in law, receipt of regulatory no-action relief or an exemption, until at least one year from the filing of certain required information with the SEC after the Closing Date. Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Subscribed Shares.

(f)Subscriber understands that each book entry for the Subscribed Shares shall contain a notation in substantially the following form:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:

(1) AGREES FOR THE BENEFIT OF FLEXJET, INC. (THE “COMPANY”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ORIGINAL ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THERETO AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:

(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR

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(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT AND IS EFFECTIVE AT THE TIME OF SUCH TRANSFER, OR

(C) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (2)(C) ABOVE, THE COMPANY AND THE TRANSFER AGENT RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

(g)Subscriber understands and agrees that Subscriber is purchasing the Subscribed Shares directly from Flexjet. Subscriber further acknowledges that there have not been, and Subscriber hereby agrees that it is not relying on, any representations, warranties, covenants or agreements made to Subscriber by Flexjet, any Participant Company (as defined below), any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the transactions contemplated herein or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of Flexjet set forth in Section 3. Subscriber acknowledges that certain information provided by Flexjet was based on projections, and such projections were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained in the projections. Subscriber further acknowledges that the information provided to Subscriber was preliminary and subject to change, including in the Registration Statement that Flexjet intends to file with the SEC (which will include substantial additional information about the Flexjet, the Participant Companies and the Transactions and will update and supersede the information previously provided to Subscriber).

(h)In making its decision to purchase the Subscribed Shares, Subscriber has relied solely upon independent investigation made by Subscriber and the representations and warranties made by Flexjet in Section 3. Subscriber acknowledges and agrees that Subscriber has received such information as Subscriber deems necessary in order to make an investment decision with respect to the Subscribed Shares, including with respect to Flexjet, SPAC, Epic Aero, Inc., the other parties to the BCA and their respective current and future subsidiaries (collectively, the “Participant Companies”) and the transactions contemplated herein.

(i)Subscriber represents and agrees that Subscriber and Subscriber’s professional advisors, if any, have had the full opportunity to ask such questions, receive such answers and obtain such information as Subscriber and such undersigned’s professional advisors, if any, have deemed necessary to make an investment decision with respect to the Subscribed Shares. Without limiting the generality of the foregoing, the Subscriber acknowledges that it has reviewed SPAC’s and Flexjet’s filings with the SEC.

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(j)Subscriber acknowledges that (A) Flexjet currently may have, and later may come into possession of, information regarding Flexjet that is not known to Subscriber and that may be material to a decision to enter into this transaction (“Excluded Information”), (B) Subscriber has determined to enter into this transaction notwithstanding its lack of knowledge of the Excluded Information, and (C) no Participant Company shall have liability to Subscriber, and Subscriber hereby to the extent permitted by law waives and releases any claims it may have against the Participant Companies with respect to the nondisclosure of the Excluded Information.

(k)Subscriber became aware of this offering of the Subscribed Shares solely by means of direct contact between Subscriber and a Participant Company or one of its respective representatives or affiliates and the Subscribed Shares were offered to Subscriber solely by direct contact between Subscriber and the applicable Participant Company (or its respective representative or affiliate). Subscriber did not become aware of this offering of the Subscribed Shares, nor were the Subscribed Shares offered to Subscriber, by any other means. Subscriber acknowledges that the Subscribed Shares (i) were not offered by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act) and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of, the Securities Act, or any state securities laws.

(l)Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares, including those set forth in SPAC’s filings with the SEC and the investor presentation dated October 11, 2022 made available to Subscriber by Flexjet prior to the execution of this Subscription Agreement. Subscriber understands the significant extent to which certain of the disclosures contained in SPAC’s filings with the SEC prior to the date hereof shall not apply following the consummation of the Transaction. Subscriber has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Subscribed Shares, and Subscriber has had an opportunity to seek, and has sought, such accounting, legal, business and tax advice as Subscriber has considered necessary to make an informed investment decision. No Participant Company nor any of its respective affiliates has offered Subscriber any tax advice relating to Subscriber’s investment in the Subscribed Shares, or made any representations, warranties or guarantees regarding the tax consequences of Subscriber’s investment in the Subscribed Shares.

(m)Alone, or together with any professional advisors, Subscriber has adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed Shares are a suitable investment for Subscriber and that Subscriber is able at this time and in the foreseeable future to bear the economic risk of a total loss of Subscriber’s investment in Flexjet. Subscriber acknowledges specifically that a possibility of total loss exists.

(n)Subscriber understands and agrees that no federal or state agency or any other government or Governmental Authority (whether foreign or domestic) has passed upon or endorsed the merits of the offering of the Subscribed Shares or made any findings or determination as to the fairness of this investment.

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(o)Subscriber is not, and is not owned or controlled by or acting on behalf of (in connection with the transactions contemplated hereby), a Sanctioned Person. Subscriber is not a non-U.S. shell bank or providing banking services to a non-U.S. shell bank. Subscriber represents that if it is a financial institution subject to the Bank Secrecy Act (31 U.S.C. Section 5311 et seq.), as amended by the USA PATRIOT Act of 2001 and its implementing regulations (collectively, the “BSA/PATRIOT Act”), that Subscriber maintains policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. Subscriber also represents that, to the extent required by applicable law, it maintains, either directly or through the use of a third-party administrator, policies and procedures reasonably designed for the screening of any investors against Sanctions-related lists of blocked or restricted persons. Subscriber further represents and warrants that the funds held by Subscriber and used to purchase the Subscribed Shares are derived from lawful activities. For purposes of this Subscription Agreement, “Sanctioned Person” means at any time any person or entity: (i) listed on any Sanctions-related list of designated or blocked or restricted persons, (ii) that is a national of, the government of, or any agency or instrumentality of the government of, or resident in, or organized under the laws of, a country or territory that is the target of comprehensive Sanctions from time to time (as of the date of this Subscription Agreement, Cuba, Iran, North Korea, Syria, and the Crimea region) or (iii) owned or controlled by or acting on behalf of any of the foregoing. “Sanctions” means those trade, economic and financial sanctions laws, regulations, embargoes, and restrictive measures (in each case having the force of law) administered, enacted or enforced from time to time by (A) the United States (including without limitation the U.S. Department of the Treasury, Office of Foreign Assets Control, the U.S. Department of State, and the U.S. Department of Commerce), (B) the European Union and enforced by its member states, (C) the United Nations and (D) Her Majesty’s Treasury.

(p)Subscriber, together with its affiliates that will hold the Subscribed Shares, are not currently (and at all times through the Closing will refrain from being or becoming) members of a “group” (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) acting for the purpose of acquiring, holding, voting or disposing of equity securities of Flexjet (within the meaning of Rule 13d-5(b)(1) under the Exchange Act).

(q)No foreign person (as defined in 31 C.F.R. Part 800.224) in which the national or subnational governments of a single foreign state have a substantial interest (as defined in 31 C.F.R. Part 800.244) will acquire a substantial interest in Flexjet as a result of the purchase and sale of Subscribed Shares hereunder such that a declaration to the Committee on Foreign Investment in the United States would be mandatory under 31 C.F.R. Part 800.401, and no foreign person will have control (as defined in 31 C.F.R. Part 800.208) over Flexjet from and after the Closing as a result of the purchase and sale of Subscribed Shares hereunder.

(r)If Subscriber is an employee benefit plan that is subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), a plan, an individual retirement account or other arrangement that is subject to section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or an employee benefit plan that is a governmental plan (as defined in section 3(32) of ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other laws or regulations that are similar to such provisions of ERISA or the Code, or an entity whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”) subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that (i) neither Flexjet, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire, continue to hold or transfer the Subscribed Shares and (ii) the acquisition and holding of the Subscribed Shares will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code.

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(s)At the applicable date, Subscriber will have sufficient funds to pay the Purchase Price in escrow pursuant to Section 2.

(t)No broker or finder is entitled to any brokerage or finder’s fee or commission solely in connection with the entry into this Subscription Agreement by Subscriber or performance of its obligations hereunder.

(u)At all times at or prior to the Closing, Subscriber has no binding commitment to dispose of, or otherwise transfer (directly or indirectly), any of the Subscribed shares.

(v)Subscriber acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Participating Companies.

(w)Subscriber is a United States citizen, as such term is defined and interpreted by courts of law, the United States Department of Transportation and the Federal Aviation Administration pursuant to federal law, including but not limited to, 42 U.S.C. 40102(a)(15).

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Section 5.Registration Rights. Without limitation of any obligations of Flexjet pursuant to the Registration Rights Agreement:

(a)Flexjet shall, within 30 calendar days after the Closing (the “Filing Deadline”), file with the SEC (at Flexjet’s sole cost and expense) a registration statement registering the resale of the Subscribed Shares (the “Registration Statement”), and use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the 60th calendar day (or 90th calendar day if the SEC notifies Flexjet that it will “review” the Registration Statement) following the earlier of (A) the filing of the Registration Statement and (B) the Filing Deadline and (ii) the 5^th Business Day after Flexjet is notified (orally or in writing, whichever is earlier) by the SEC that the Registration Statement will not be “reviewed” or will not be subject to further review (such date, the “Effectiveness Deadline”); provided, however, that Flexjet’s obligations to include Subscriber’s Subscribed Shares in the Registration Statement are contingent upon Subscriber furnishing in writing to Flexjet such information regarding Subscriber, the securities of Flexjet held by Subscriber and the intended method of disposition of the Subscribed Shares (which shall be limited to non-underwritten public offerings) as shall be reasonably requested by Flexjet to effect the registration of the Subscribed Shares, and shall execute such documents in connection with such registration as Flexjet may reasonably request that are customary of a selling stockholder in similar situations. Flexjet agrees that, except for such times as Flexjet is permitted hereunder to suspend the use of the prospectus forming part of a Registration Statement, Flexjet will use its reasonable best efforts to, at its expense, cause such Registration Statement or another registration statement (which may be a “shelf registration statement”) to remain effective with respect to Subscriber, keep any qualification, exemption or compliance under state securities laws which Flexjet determines to obtain continuously effective with respect to Subscriber, and to keep the applicable Registration Statement or any subsequent shelf registration statement free of any material misstatements or omissions, until the earlier of (i) two years from effective date of the Registration Statement, (ii) the date on which all of the Subscribed Shares shall have been sold, or (iii) on the first date on which the undersigned can sell all of its Subscribed Shares (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner of sale, the amount of such securities that may be sold and without the requirement for Flexjet to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable); provided that, Flexjet shall be entitled to delay the filing or postpone the effectiveness of the Registration Statement, and from time to time to require Subscriber not to sell under the Registration Statement or to suspend the effectiveness thereof, if (A) Flexjet’s board of directors reasonably determines that in order for the Registration Statement not to contain a material misstatement or omission, an amendment thereto would be needed, (B) the negotiation or consummation of a transaction by Flexjet or its subsidiaries is pending or an event has occurred, which negotiation, consummation or event Flexjet’s board of directors reasonably believes would require additional disclosure by Flexjet in the Registration Statement of material information that Flexjet has a bona fide business purpose for keeping confidential and the non-disclosure of which in the Registration Statement would be expected, in the reasonable determination of Flexjet’s board of directors to cause the Registration Statement to fail to comply with applicable disclosure requirements or (C) in the reasonable judgment of the Flexjet’s board of directors, such filing or effectiveness or use of such Registration Statement would be seriously detrimental to Flexjet (such circumstance, a “Suspension Event”); provided, however, that Flexjet may not delay or suspend the Registration Statement on more than two occasions or for more than 90 consecutive calendar days, or more than 120 total calendar days, in each case during any 12-month period. Upon receipt of any written notice from Flexjet (which notice shall not contain any material non-public information regarding Flexjet) of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading, Subscriber agrees that (1) it will immediately discontinue offers and sales of the Subscribed Shares under the Registration Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until Subscriber receives copies of a supplemental or amended prospectus (which Flexjet agrees to promptly prepare) that corrects the misstatements or omissions referred to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by Flexjet that it may resume such offers and sales, and (2) it will maintain the confidentiality of any information included in such written notice delivered by Flexjet unless otherwise required by law or subpoena. If so directed by Flexjet, Subscriber will deliver to Flexjet or, in Subscriber’s sole discretion destroy, all copies of the prospectus covering the Subscribed Shares in Subscriber’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Subscribed Shares shall not apply (I) to the extent Subscriber is required to retain a copy of such prospectus (x) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (y) in accordance with a bona fide pre-existing document retention policy or (II) to copies stored electronically on archival servers as a result of automatic data back-up.

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(b)Flexjet shall promptly advise Subscriber:

(i) when a Registration Statement or any amendment thereto has been filed with the SEC and when such Registration Statement or any post-effective amendment thereto has become effective;

(ii) of any request by the SEC for amendments or supplements to any Registration Statement or the prospectus included therein or for additional information;

(iii) of the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for such purpose;

(iv) of the receipt by Flexjet of any notification with respect to the suspension of the qualification of the Subscribed Shares included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and

(v) subject to the provisions in this Subscription Agreement, of the occurrence of any event that requires the making of any changes in any Registration Statement or prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances under which they were made) not misleading.

Notwithstanding anything to the contrary set forth herein, Flexjet shall not, when so advising Subscriber of such events, provide Subscriber with any material, nonpublic information regarding Flexjet other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (i) through (v) above constitutes material, nonpublic information regarding Flexjet or subjects the Subscriber to any duty of confidentiality.

(c)Flexjet shall use its commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable.

(d)Except for such times as Flexjet is permitted hereunder to suspend, and has suspended, the use of a prospectus forming part of a Registration Statement as contemplated by this Subscription Agreement, Flexjet shall use its reasonable best efforts to as soon as reasonably practicable prepare a post-effective amendment to such Registration Statement or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Subscribed Shares included therein, such prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(e)Flexjet shall use its reasonable best efforts to cause all Subscribed Shares to be listed on each securities exchange or market, if any, on which the Flexjet Common Stock has been listed.

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Section 6.Termination. Except for Sections 6, 7 and 9, which shall survive any termination of this Subscription Agreement, this Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of (a) such date and time as the BCA is terminated in accordance with its terms, (b) upon the mutual written agreement of the parties hereto to terminate this Subscription Agreement, and (c) on September 30, 2023; provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies at Law or in equity to recover losses, liabilities or damages arising from such breach. Flexjet shall notify Subscriber of the termination of the BCA promptly after any termination thereof.

Section 7.Trust Account Waiver. Subscriber hereby acknowledges that SPAC has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (the “IPO”) and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of SPAC’s public shareholders and certain other parties (including the underwriters of the IPO). Subscriber acknowledges that, in connection with the Transactions and as contemplated by the BCA, it is contemplated that the agreement governing the Trust Account will be assigned from SPAC to Flexjet with effect as of the consummation of the SPAC Merger. For and in consideration of Flexjet entering into this Subscription Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Subscriber hereby (a) agrees that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account, and shall not make any claim against the Trust Account, regardless of whether such claim arises as a result of, in connection with or relating in any way to this Subscription Agreement or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released Claims”), (b) irrevocably waives any Released Claims that it may have against the Trust Account now or in the future as a result of, or arising out of, any negotiations, contracts or agreements with Flexjet, and (c) will not seek recourse against the Trust Account for any reason whatsoever; provided, however, that nothing in this Section 7 shall be deemed to limit any Subscriber’s right to distributions from the Trust Account in accordance with the applicable terms of the SPAC’s Organizational Documents or the Amended and Restated Flexjet Charter and Amended and Restated Flexjet Bylaws in respect of any SPAC Class A Common Stock (prior to the closing of the SPAC Merger) or Flexjet Class A Common Stock (following the closing of the SPAC Merger) acquired by any means other than pursuant to this Subscription Agreement or any Subscriber’s right, title, interest or claim to the Trust Account by virtue of such Subscriber’s record or beneficial ownership of securities of SPAC or Flexjet acquired by any means other than pursuant to this Subscription Agreement, including but not limited to any redemption right with respect to any such securities of SPAC or Flexjet. Subscriber agrees and acknowledges that such irrevocable waiver is material to this Subscription Agreement and specifically relied upon by Flexjet and its affiliates to induce Flexjet to enter into this Subscription Agreement and Subscriber further intends and understands such waiver to be valid, binding and enforceable against Subscriber under applicable Law.

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Section 8.Indemnity.

(a) Flexjet agrees to indemnify and hold harmless, to the extent permitted by Law, the Subscriber, its directors, and officers, employees, and agents, and each person who controls the Subscriber (within the meaning of the Securities Act or the Exchange Act) and each affiliate of the Subscriber (within the meaning of Rule 405 under the Securities Act), to the extent the Subscriber is a seller under the Registration Statement, from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation, any reasonable attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, prospectus included in any Registration Statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in light of the circumstances in which they were made) not misleading, except insofar as the same are caused by or contained in any information furnished in writing to Flexjet by or on behalf of the Subscriber expressly for use therein.

(b)The Subscriber agrees, in connection with any Registration Statement under which the Subscriber is a seller, severally and not jointly with any person that is a party to the Other Subscription Agreements, to indemnify and hold harmless Flexjet, its affiliates and its and its affiliates’ directors, officers, employees and agents, and each person who controls Flexjet (within the meaning of the Securities Act or the Exchange Act) against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) resulting from any untrue statement of material fact contained in the Registration Statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus, in the light of the circumstances in which they were made) not misleading, but only to the extent that such untrue statement or omission is contained (or not contained, in the case of an omission) in any information or affidavit so furnished by or on behalf of the Subscriber expressly for use therein. In no event shall the liability of the Subscriber be greater in amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Subscribed Shares giving rise to such indemnification obligation.

(c)Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who elects not to assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of legal counsel to any indemnified party a conflict of interest exists between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

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(d)The indemnification provided for under this Subscription Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of the Subscribed Shares.

(e)If the indemnification provided under this Section 8 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made (or not made, in the case of an omission) by, or relates to information supplied (or not supplied, in the case of an omission) by or on behalf of, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the other limitations set forth in this Section 8, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this Section 8 from any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 8(e) by any seller of Subscribed Shares shall be limited in amount to the amount of net proceeds received by such seller from the sale of such Subscribed Shares pursuant to the Registration Statement. Notwithstanding anything to the contrary herein, in no event will any party be liable for consequential, special, exemplary or punitive damages in connection with this Subscription Agreement.

Section 9.Miscellaneous.

(a)All notices, requests, demands, claims, and other communications hereunder shall be in writing and be deemed to have been duly given (i) when delivered in person, (ii) three Business Days after being sent, if sent by registered or certified mail return receipt requested, postage prepaid, (iii) one Business Day after being sent, if sent by FedEx or other nationally recognized overnight delivery service, or (iv) when delivered by email with electronic confirmation of delivery, in each case, addressed to the intended recipient at its address specified on the signature page hereof or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 9(a).

(b)Subscriber acknowledges that Flexjet and others have relied and will rely on the acknowledgments, understandings, agreements, representations and warranties of Subscriber contained in this Subscription Agreement; provided, however, that the foregoing clause of this Section 9(b) shall not give Flexjet or any third party any rights other than as expressly set forth herein. Prior to the Closing, Subscriber agrees to promptly notify Flexjet if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in all material respects. Subscriber acknowledges and agrees that the purchase by Subscriber of Subscribed Shares from Flexjet will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein by Subscriber as of the Closing. Flexjet acknowledges that Subscriber will rely on the acknowledgments, understandings, agreements, representations and warranties of Flexjet contained in this Subscription Agreement. Prior to the Closing, Flexjet agrees to promptly notify Subscriber if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Flexjet set forth herein are no longer accurate in all material respects.

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(c)Each of Flexjet and Subscriber is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby.

(d)Subscriber shall pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.

(e)Subscriber hereby acknowledges and agrees that it will not, nor will any person acting at Subscriber’s direction or pursuant to any understanding with Subscriber, directly or indirectly offer, sell, pledge, contract to sell, sell any option, engage in hedging activities or execute any “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act, of the Subscribed Shares until the consummation of the Transactions (or the earlier termination of this Subscription Agreement in accordance with its terms).

(f)Neither this Subscription Agreement nor any rights that may accrue to Subscriber hereunder (other than the Subscribed Shares acquired hereunder, if any) may be transferred or assigned. Neither this Subscription Agreement nor any rights that may accrue to Flexjet hereunder may be transferred or assigned (provided, that, for the avoidance of doubt, Flexjet may transfer the Subscription Agreement and its rights hereunder solely in connection with the consummation of the Transactions and exclusively to another entity that controls, is under the control of, or is under common control with, Flexjet). Notwithstanding the foregoing, Subscriber may assign its rights and obligations under this Subscription Agreement to one or more of its affiliates (including other investment funds or accounts managed or advised by the investment manager who acts on behalf of Subscriber, if any) or, with Flexjet’s prior written consent, to another person, provided that no such assignment shall relieve Subscriber of its obligations hereunder if any such assignee fails to perform such obligations.

(g)All the agreements, representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.

(h)Flexjet may request from Subscriber such additional information as Flexjet may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Subscribed Shares, and Subscriber shall provide such information as may be reasonably requested. Subscriber acknowledges that Flexjet may file a copy of the form of this Subscription Agreement with the SEC as an exhibit to a periodic report of Flexjet or a registration statement of Flexjet.

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(i)This Subscription Agreement may not be amended, modified or waived except by an instrument in writing, signed by each of the parties hereto.

(j)This Subscription Agreement constitutes the entire agreement between the parties hereto, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, between the parties hereto with respect to the subject matter hereof.

(k)Except as otherwise provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives, and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other person. Notwithstanding the foregoing, the parties hereto agree that each of the Participant Companies that is not a party hereto is an express third-party beneficiary of this Subscription Agreement (the “Beneficiaries”). Each of the parties hereto acknowledge and agree that each of the parties hereto and each of the Beneficiaries shall be entitled to seek and obtain equitable relief, without proof of actual damages, including an injunction or injunctions or order for specific performance to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement to cause Flexjet to cause, or directly cause, Subscriber to fund the Purchase Price and cause the Closing to occur on the Subscription Closing Date. Each party hereto further agrees that none of the parties hereto or any of the Beneficiaries shall be required to obtain, furnish, or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9(k), and each party hereto irrevocably waives any right it may have to require the obtaining, furnishing, or posting of any such bond of similar instrument.

(l)The parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed in accordance with their specific terms or were otherwise breached and that money or other legal remedies would not be an adequate remedy for such damage. It is accordingly agreed that the parties hereto shall be entitled to equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened breaches of this Subscription Agreement and to enforce specifically the terms and provisions of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in contract, in tort or otherwise. The parties hereto acknowledge and agree that Flexjet shall be entitled to specifically enforce Subscriber’s obligations to fund the Subscription Amount and the provisions of the Subscription Agreement, in each case, on the terms and subject to the conditions set forth herein. The parties hereto further acknowledge and agree: (i) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy; (ii) not to assert that a remedy of specific enforcement pursuant to this Section 9(l) is unenforceable, invalid, contrary to applicable Law or inequitable for any reason; and (iii) to waive any defenses in any action for specific performance, including the defense that a remedy at Law would be adequate. In connection with any proceeding for which Flexjet is being granted an award of money damages, the Subscriber agrees that such damages, to the extent payable by such party, shall include, without limitation, damages related to the consideration that is or was to be paid to Flexjet under the BCA, this Subscription Agreement or both, and such damages are not limited to an award of out-of-pocket fees and expenses related to the BCA and this Subscription Agreement.

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(m)In any dispute arising out of or related to this Subscription Agreement, or any other agreement, document, instrument or certificate contemplated hereby, or any transactions contemplated hereby or thereby, the applicable adjudicating body shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the dispute and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby and, if the adjudicating body determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the adjudicating body may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the adjudication and the enforcement of its rights under this Subscription Agreement or any other agreement, document, instrument or certificate contemplated hereby or thereby.

(n) If any provision of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force and effect.

(o)No failure or delay by a party hereto in exercising any right, power or remedy under this Subscription Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Subscription Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Subscription Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand.

(p)This Subscription Agreement may be executed and delivered in counterparts (including by electronic mail or in .pdf) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.

(q)This Subscription Agreement, and any claim or cause of action hereunder based upon, arising out of or related to this Subscription Agreement (whether based on law, in equity, in contract, in tort or any other theory) or the negotiation, execution, performance or enforcement of this Subscription Agreement, shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other jurisdiction.

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(r) EACH PARTY AND ANY PERSON ASSERTING RIGHTS AS A THIRD PARTY BENEFICIARY HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OR RELATED TO THIS SUBSCRIPTION AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE PARTIES AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS Section 9(r) AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS SUBSCRIPTION AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS SUBSCRIPTION AGREEMENT.

(s)The parties hereto agree that all disputes, legal actions, suits and proceedings arising out of or relating to this Subscription Agreement must be brought exclusively in the Court of Chancery of the State of Delaware or, to the extent such court does not have subject matter jurisdiction, the Superior Court of the State of Delaware, or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware (collectively the “Designated Courts”). Each party hereby consents and submits to the exclusive jurisdiction of the Designated Courts. No legal action, suit or proceeding with respect to this Subscription Agreement may be brought in any other forum. Each party hereby irrevocably waives all claims of immunity from jurisdiction, and any objection which such party may now or hereafter have to the laying of venue of any suit, action or proceeding in any Designated Court, including any right to object on the basis that any dispute, action, suit or proceeding brought in the Designated Courts has been brought in an improper or inconvenient forum or venue. Each of the parties hereto also agrees that delivery of any process, summons, notice or document to a party hereof in compliance with Section 9(a) of this Subscription Agreement shall be effective service of process for any action, suit or proceeding in a Designated Court with respect to any matters to which the parties have submitted to jurisdiction as set forth above.

(t)This Subscription Agreement may only be enforced against, and any claim, action, suit or other legal proceeding based upon, arising out of, or related to this Subscription Agreement, or the negotiation, execution or performance of this Subscription Agreement, may only be brought against the entities that are expressly named as parties or third party beneficiaries hereto and then only with respect to the specific obligations set forth herein with respect to such party or third party beneficiary. No past, present or future director, officer, employee, incorporator, manager, member, partner, stockholder, affiliate, agent, attorney or other representative of any party hereto or of any affiliate of any party hereto, or any of their successors or permitted assigns, shall have any liability for any obligations or liabilities of any party hereto under this Subscription Agreement or for any claim, action, suit or other legal proceeding based on, in respect of or by reason of the transactions contemplated hereby.

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(u) If, any change in SPAC Class A Common Stock (prior to the consummation of the SPAC Merger) or the Flexjet Class A Common Stock (following the consummation of the SPAC Merger) shall occur between the date hereof and immediately prior to the Closing by reason of any reclassification, recapitalization, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend, the number of Subscribed Shares issued to Subscriber shall be appropriately adjusted to reflect such change.

(v)Subscriber hereby consents to the publication and disclosure in any press release issued by Flexjet, SPAC or any other Participant Company, any Form 8-K filed by Flexjet or SPAC with the SEC in connection with the execution and delivery of the BCA or the transactions contemplated thereby and the Proxy Statement/Prospectus (and, as and to the extent otherwise required by the federal securities laws, exchange rules, the SEC or any other securities authorities or any rules and regulations promulgated thereby, any other documents or communications provided by Flexjet or SPAC to any Governmental Authority or to any securityholders of Flexjet or SPAC) of Subscriber’s identity and beneficial ownership of the Subscribed Shares and the nature of Subscriber’s commitments, arrangements and understandings under and relating to this Subscription Agreement and, if deemed appropriate by Flexjet or SPAC, a copy of this Subscription Agreement, all solely to the extent required by applicable law or any regulation or stock exchange listing requirement. Subscriber will promptly provide any information reasonably requested by Flexjet or SPAC for any regulatory application or filing made or approval sought in connection with the Transactions (including filings with the SEC). Notwithstanding the foregoing, Flexjet shall provide to Subscriber a copy of any proposed disclosure relating to Subscriber in accordance with the provisions of this Section 9(v) in advance of any publication thereof and shall consider in good faith such revisions to such proposed disclosure as Subscriber shall reasonably request.

(w)Flexjet shall issue, or shall cause SPAC to issue, by 9:00 a.m., New York City time, on the fourth Business Day immediately following the date hereof, one or more press releases or file with the SEC a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and by the Other Subscription Agreements and in connection with the Transaction. Upon the issuance of the Disclosure Document, to Flexjet’s knowledge, Subscriber (provided that Subscriber is not, or is not an affiliate of any person who is, an existing investor in Flexjet) shall not be in possession of any material, non-public information received from Flexjet, SPAC or their respective officers, directors, employees or agents, and Subscriber shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with Flexjet, SPAC or any of their affiliates in connection with the Transactions.

(x)The obligations of Subscriber under this Subscription Agreement are several and not joint with the obligations of any Other Subscriber or any other investor under the Other Subscription Agreements, and Subscriber shall not be responsible in any way for the performance of the obligations of any Other Subscriber under this Subscription Agreement or any Other Subscriber or other investor under the Other Subscription Agreements. The decision of Subscriber to purchase Subscribed Shares pursuant to this Subscription Agreement has been made by Subscriber independently of any Other Subscriber or any other investor and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or otherwise) or prospects of Flexjet, or any of its subsidiaries which may have been made or given by any Other Subscriber or investor or by any agent or employee of any Other Subscriber or investor, and neither Subscriber nor any of its agents or employees shall have any liability to any Other Subscriber or investor (or any other person) relating to or arising from any such information, materials, statements or opinions. Nothing contained herein or in any Other Subscription Agreement, and no action taken by Subscriber or any other investor pursuant hereto or thereto, shall be deemed to constitute Subscriber and Other Subscribers or any other investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that Subscriber and Other Subscribers or other investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Subscription Agreement and the Other Subscription Agreements. Subscriber acknowledges that no Other Subscriber has acted as agent for Subscriber in connection with making its investment hereunder and no Other Subscriber will be acting as agent of Subscriber in connection with monitoring its investment in the Subscribed Shares or enforcing its rights under this Subscription Agreement. Subscriber shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Subscription Agreement, and it shall not be necessary for any Other Subscriber or investor to be joined as an additional party in any proceeding for such purpose.

[Signature pages follow]

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IN WITNESS WHEREOF, each the parties hereto have executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date first set forth above.

FLEXJET, INC.
By:
	Name:
	Title:
Address for Notices:
	Flexjet, Inc. Cuyahoga County Airport 26180 Curtiss Wright Parkway Cleveland, Ohio 44143 Attn: Kenneth Ricci
with a copy (not to constitute notice) to:
	White & Case LLP 1221 Avenue of Americas New York, New York 10020-1095 Attention:   Joel Rubinstein                    Daniel Nussen
	Email:    Joel.Rubinstein@whitecase.com
	Daniel.Nussen@whitecase.com
and
	Sidley Austin LLP One South Dearborn Chicago, Illinois 60603 Attention: Myles Pollin Email: mpollin@sidley.com
and
	Sidley Austin LLP
	2021 McKinney Avenue, Suite 2000
	Dallas, Texas 75201
	Attention:    Bill Howell
	Ryan Scofield
	Email:   bhowell@sidley.com
	rscofield@sidley.com

Signature Page to Subscription Agreement

	[SUBSCRIBER]
By:
	Name:
	Title:
Address for Notices:
Name in which shares are to be registered:

Number of Subscribed Shares subscribed for:	______________________
Price Per Subscribed Share:	$10.00
Aggregate Purchase Price:	$____________________

You must pay the Purchase Price by wire transfer of United States dollars in immediately available funds to the account of Flexjet specified by Flexjet in the Closing Notice.

ANNEX A

ELIGIBILITY REPRESENTATIONS OF SUBSCRIBER

This Annex A should be completed and signed by Subscriber
and constitutes a part of the Subscription Agreement.

A. QUALIFIED INSTITUTIONAL BUYER STATUS (Please check the box, if applicable)

¨ Subscriber is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) (a “QIB”)

¨ We are subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts, and each owner of such account is a QIB.

B. ACCREDITED INVESTOR STATUS (Please check the box)

¨ Subscriber is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3), (7), (8) or (9) under the Securities Act) or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act, and has marked and initialed the appropriate box below indicating the provision under which it qualifies as an “accredited investor.”

C. AFFILIATE STATUS
(Please check the applicable box)

SUBSCRIBER:

¨ is:

¨ is not:

an “affiliate” (as defined in Rule 144 under the Securities Act) of Flexjet or acting on behalf of an affiliate of Flexjet.

Rule 501(a), in relevant part, states that an “accredited investor” shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the securities to that person. Subscriber has indicated, by marking and initialing the appropriate box below, the provision(s) below which apply to Subscriber and under which Subscriber accordingly qualifies as an “accredited investor.”

¨ Any bank, registered broker or dealer, insurance company, registered investment company, business development company, or small business investment company;

¨ Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if such plan has total assets in excess of $5,000,000, or, if a self-directed plan, with investment decisions made solely by persons that are accredited investors;

¨ Any private business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940;

¨ Any employee benefit plan, within the meaning of the Employee Retirement Income Security Act of 1974, if a bank, insurance company, or registered investment adviser makes the investment decisions, or if the plan has total assets in excess of $5,000,000;

¨ Any corporation, similar business trust, partnership or any organization described in Section 501(c)(3) of the Internal Revenue Code, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of $5,000,000;

¨ Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer;

¨ Any natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his purchase exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence must not be included as an asset; (b) indebtedness secured by the person’s primary residence up to the estimated fair market value of the primary residence must not be included as a liability (except that if the amount of such indebtedness outstanding at the time of calculation exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess must be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the residence must be included as a liability;

¨ Any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year;

¨ Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in § 230.506(b)(2)(ii);

¨ Any entity in which all of the equity owners are accredited investors; or

¨ Any entity, of a type not listed above, not formed for the specific purpose of acquiring the securities offered, owning investments in excess of $5,000,000.

This page should be completed by Subscriber and constitutes a part of the Subscription Agreement.

SUBSCRIBER:

Print Name:

By:

Name:

Title:

EX-10.6

Exhibit 10.6

STOCKHOLDERS AGREEMENT

This Stockholders Agreement (this “Agreement”) is made as of [●], by and among:

(i) Flexjet, Inc., a Delaware corporation (the “Company”);

(ii) Directional Capital LLC, a Delaware limited liability company (“Directional”);

(iii) Kenneth C. Ricci and Michael A. Rossi, the principals of Directional (together with Directional, the “Directional Parties”);

(iv) Eldridge Industries, LLC, a Delaware limited liability company (“Eldridge”); and

(iii)       Horizon II Sponsor, LLC, a Delaware limited liability company (“Sponsor” and, together with the Directional Parties and Eldridge, each a “Voting Party” and together the “Voting Parties”).

RECITALS

WHEREAS, the Company has entered into that certain Business Combination Agreement, dated as of October 11, 2022 (as it may be amended or supplemented from time to time, the “Business Combination Agreement”), by and among Horizon Acquisition Corporation II, OTH Merger Sub 1, LLC, the Company, Flexjet Sub, LLC and Epic Aero, Inc., pursuant to which the parties thereto have agreed to consummate the Transactions (as defined in the Business Combination Agreement);

WHEREAS, in connection with the Transactions, the Company and the Voting Parties are party to an Amended and Restated Registration Rights Agreement, dated as of the date hereof (as it may be amended, supplemented, restated and/or modified from time to time, the “Registration Rights Agreement”);

WHEREAS, in connection with the Transactions, the Voting Parties have agreed to execute and deliver this Agreement;

WHEREAS, as of immediately following the closing of the Transactions (the “Closing”) each Voting Party Beneficially Owns (as defined below) the respective number of shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”), set forth on Annex A hereto; and

WHEREAS, the parties hereto desire to enter into this Agreement to provide for certain nomination rights with respect to elections of the Company’s Board of Directors (the “Board”) and restrictions on transfers of the Common Stock.

NOW THEREFORE, in consideration of the foregoing and of the promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

1.Definitions. Capitalized terms used herein but not defined in this Agreement shall have the meanings ascribed to them in the Business Combination Agreement. In addition to the terms defined elsewhere in this Agreement, the following terms shall have the meanings indicated when used in this Agreement with initial capital letters:

“Action” means any claim, action, suit, proceeding, audit, examination, assessment, arbitration, litigation, mediation or investigation by or before any Governmental Authority.

“Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.

“Agreement” shall have the meaning specified in the Preamble.

“Beneficially Owned”, “Beneficially Own” or “Beneficial Ownership” shall have the meaning specified in Section 2.

“Board” shall have the meaning specified in the Recitals.

“Business Combination Agreement” shall have the meaning specified in the Recitals.

“Bylaws” shall mean the Bylaws of the Company, as they may be amended, supplemented and/or restated from time to time.

“Charter” shall mean the Amended and Restated Certificate of Incorporation of the Company, as it may be amended, supplemented and/or restated from time to time.

“Closing” shall have the meaning specified in the Recitals.

“Closing Date” shall have the meaning given in the Business Combination Agreement.

“Common Stock” shall have the meaning specified in the Recitals.

“Company” shall have the meaning specified in the Preamble.

“Directional” shall have the meaning specified in the Preamble.

“Directional Equityholders” shall mean Directional, the Directional Parties and any investment vehicles or funds managed or controlled, directly or indirectly, by the Directional Parties.

“Directional Sunset Date” means the date the Directional Equityholders, in the aggregate, Beneficially Own less than five percent (5%) of the outstanding Voting Shares.

“Directional Transferee” shall have the meaning specified in Section 14(b).

“Directional Designees” shall have the meaning specified in Section 3(a)(i).

“Directional Parties” shall have the meaning specified in the Preamble.

“Eldridge” shall have the meaning specified in the Preamble.

“Eldridge Designees” shall have the meaning specified in Section 3(a)(ii).

“Eldridge Equityholders” shall mean Eldridge, its Affiliates and any investment vehicles or funds managed or controlled, directly or indirectly, by Eldridge or any of Eldridge’s Affiliates, including without limitation Epic Preferred Holdings LLC, Epic Preferred Holdings II LLC and Eldridge EA Holdings, LLC.

“Eldridge Sunset Date” means the date the Eldridge Equityholders, in the aggregate, Beneficially Own less than five percent (5%) of the outstanding Voting Shares.

“Eldridge Transferee” shall have the meaning specified in Section 14(b).

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Governmental Authority” means any nation or government, any state, province, county, municipal or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, tribunal, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, bureau, commission or instrumentality of any federal, state, local or foreign jurisdiction, including any public international organization such as the United Nations.

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“Liens” shall have the meaning given in the Business Combination Agreement.

“Lock-up Period” shall mean the period beginning on the Closing Date and ending three (3) months after the Closing Date.

“Lock-up Shares” shall mean (i) any shares of Common Stock Beneficially Owned by the Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders, other than the Common Stock received in connection with the PIPE Investment (as defined in the Business Combination Agreement) and (ii) any warrants Beneficially Owned by the Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders that are exercisable for shares of Common Stock and the shares underlying such warrants.

“Necessary Action” means, with respect to any party and a specified result, all actions (to the extent such actions are not prohibited by applicable law, are within such party’s control and do not directly conflict with any rights expressly granted to such party in this Agreement, the Business Combination Agreement, the Registration Rights Agreement, the Charter or the Bylaws) reasonably necessary and desirable within his, her or its control to cause such result, including, without limitation (i) calling special meetings of the Board and/or the stockholders of the Company, (ii) voting or providing a proxy with respect to the Voting Shares beneficially owned by such party, (iii) voting in favor of the adoption of stockholders’ or Board resolutions and amendments to the Charter or Bylaws, including executing written consents in lieu of meetings, (iv) requesting members of the Board (to the extent such members were elected, nominated or designated by the party obligated to undertake such action) to act (subject to any applicable fiduciary duties) in a certain manner or causing them to be removed in the event they do not act in such a manner and (v) making, or causing to be made, with Governmental Authorities, all filings, registrations or similar actions that are required to achieve such a result.

“NYSE” means the New York Stock Exchange.

“Permitted Transferees” shall have the meaning specified in Section 6(b).

“Registration Rights Agreement” shall have the meaning specified in the Recitals.

“Representatives” shall have the meaning specified in Section 7.

“Sponsor” shall have the meaning specified in the Preamble.

“Sponsor Equityholders” shall mean Sponsor and any investment vehicles or funds managed or controlled, directly or indirectly, by any of Sponsor’s Affiliates.

“Sponsor Sunset Date” means the date the Sponsor Equityholders, in the aggregate, Beneficially Own less than five percent (5%) of the outstanding Voting Shares.

“Sponsor Transferee” shall have the meaning specified in Section 14(b).

“Transfer” means the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).

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“Voting Party” or “Voting Parties” shall have the meaning specified in the Preamble.

“Voting Shares” shall have the meaning specified in Section 2.

2.Agreement to Vote. During the term of this Agreement, each Voting Party shall vote or cause to be voted all securities of the Company that may be voted in the election of the Company’s directors registered in the name of, or beneficially owned (as such term is defined in Rule 13d-3 under the Exchange Act) (“Beneficially Owned” “Beneficially Own” or “Beneficial Ownership”) by such Voting Party, including (a) for clarity, (i) in the case of the Directional Parties, all shares Beneficially Owned by the Directional Equityholders, (ii) in the case of Eldridge, all shares Beneficially Owned by the Eldridge Equityholders, and (iii) in the case of Sponsor, all shares Beneficially Owned by the Sponsor Equityholders, and (b) any and all securities of the Company acquired and held in such capacity subsequent to the date hereof (hereinafter referred to as the “Voting Shares”), in accordance with the provisions of this Agreement, including voting or causing to be voted all Voting Shares Beneficially Owned by such Voting Party so that the Board is comprised of the Persons designated pursuant to Section 3. Except as explicitly provided in this Agreement, each Voting Party is free to vote or cause to be voted all Voting Shares Beneficially Owned by such Voting Party. For the avoidance of doubt, nothing in this Section 2 shall require a Voting Party to exercise or convert any security exercisable or convertible into voting securities of the Company.

3.Board of Directors.

(a)Board Representation Immediately Following the Closing Date. Subject to the terms and conditions of this Agreement, from the date of this Agreement, the Company and each Voting Party shall take all Necessary Action to cause, effective immediately following the Closing Date, the Board to be comprised of seven (7) directors, comprised of:

(i)four (4) directors designated by the Directional Parties (the “Directional Designees” and each a “Directional Designee”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company (including at least one (1) director who shall qualify as an “independent director” under stock exchange regulations and Rule 10A-3 of the Exchange Act in respect of service on the audit committee of the Board); and

(ii)three (3) directors designated by Eldridge (the “Eldridge Designees” and each a “Eldridge Designee”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company (including at least two (2) directors who shall each qualify as an “independent director” under stock exchange regulations and Rule 10A-3 of the Exchange Act in respect of service on the audit committee of the Board).

(b)Ongoing Board Representation.

(i)From the Closing Date, the individuals nominated for election or appointed as directors by or at the direction of the Board shall include the number of Directional Designees that result in, upon the election of each such individual and each other individual nominated or appointed as directors by or at the direction of the Board and taking into account any director continuing to serve as such without the need for re-election, the following number of Directional Designees serving as directors of the Company:

(A)four (4) Directional Designees, so long as the Directional Equityholders, in the aggregate, Beneficially Own at least 17.5% of the outstanding shares of Common Stock, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company (including at least one (1) director who shall qualify as an “independent director” under stock exchange regulations and Rule 10A-3 of the Exchange Act in respect of service on the audit committee of the Board);

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(B)three (3) Directional Designees, so long as the Directional Equityholders, in the aggregate, Beneficially Own at least 12.5% but less than 17.5% of the outstanding shares of Common Stock, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company (including qualification as an “independent director” under stock exchange regulations and Rule 10A-3 of the Exchange Act in respect of service on the audit committee of the Board);

(C)two (2) Directional Designees, so long as the Directional Equityholders, in the aggregate, Beneficially Own at least 7.5% but less than 12.5% of the outstanding shares of Common Stock; and

(D)thereafter until the Directional Sunset Date, one (1) Directional Designee;

provided that, no reduction in the number of Directional Designees that the Directional Parties are entitled to designate pursuant to this Section 3(b)(i) shall shorten the term of any Directional Designee then-serving on the Board.

(ii)From the Closing Date, the individuals nominated for election or appointed as directors by or at the direction of the Board shall include the number of Eldridge Designees that result in, upon the election of each such individual and each other individual nominated or appointed as directors by or at the direction of the Board and taking into account any director continuing to serve as such without the need for re-election, the following number of Eldridge Designees serving as directors of the Company:

(A)three (3) Eldridge Designees, so long as the Eldridge Equityholders, in the aggregate, Beneficially Own at least 12.5% of the outstanding shares of Common Stock, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company (including at least two (2) directors who shall each qualify as an “independent director” under stock exchange regulations and Rule 10A-3 of the Exchange Act in respect of service on the audit committee of the Board);

(B)two (2) Eldridge Designees, so long as the Eldridge Equityholders, in the aggregate, Beneficially Own at least 7.5% but less than 12.5% of the outstanding shares of Common Stock, one (1) of which shall qualify as an “independent director” under stock exchange regulations applicable to the Company (including at least one (1) director who shall qualify as an “independent director” under stock exchange regulations and Rule 10A-3 of the Exchange Act in respect of service on the audit committee of the Board), and

(C)thereafter until the Eldridge Sunset Date, one (1) Eldridge Designee;

provided that, no reduction in the number of Eldridge Designees that Eldridge is entitled to designate pursuant to this Section 3(b)(ii) shall shorten the term of any Eldridge Designee then-serving on the Board.

(iii)(x) Prior to the Directional Sunset Date, the size of the Board shall not be increased or decreased without the affirmative vote of at least one (1) non-independent Directional Designee and (y) prior to the Eldridge Sunset Date, the size of the Board shall not be increased or decreased without the affirmative vote of at least one (1) non-independent Eldridge Designee.

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(c)Sunset on Designees.

(i)From the date of this Agreement until the Directional Sunset Date, the Company shall, and the Voting Parties shall take all Necessary Action to, include the requisite number of Directional Designees in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of the stockholders of the Company, including at every adjournment or postponement thereof, at which directors are to be elected.

(ii)From the date of this Agreement until the Eldridge Sunset Date, the Company shall, and the Voting Parties shall take all Necessary Action to, include the requisite number of Eldridge Designees in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of the stockholders of the Company, including at every adjournment or postponement thereof, at which directors are to be elected.

(iii)Once the Directional Equityholders and Eldridge Equityholders, as applicable, lose the right to nominate a director in accordance with this Section 3, the selection of such director shall be conducted in accordance with applicable law and with the Charter, Bylaws and the other corporate governance documents of the Company.

(d)Resignation; Removal; Vacancies.

(i)Any Directional Designee or Eldridge Designee may resign at any time upon written notice to the Board.

(ii)The Directional Parties shall have the exclusive right, in accordance with Section 3(b)(i), to designate directors for election to the Board to fill any vacancies created by reason of the death, removal or resignation of a Directional Designee, and the Company and the Voting Parties shall take all Necessary Action to cause any such vacancies to be filled by replacement Directional Designees as promptly as reasonably practicable.

(iii) Eldridge shall have the exclusive right, in accordance with Section 3(b)(ii), to designate directors for election to the Board to fill any vacancy created by reason of the death, removal or resignation of a Eldridge Designee, and the Company and the Voting Parties shall take all Necessary Action to cause any such vacancy to be filled by a replacement Eldridge Designee as promptly as reasonably practicable.

(e)Committees.

(i)Until the Directional Sunset Date, the Directional Parties shall have the right to appoint one (1) member of each committee of the Board, provided that any such designee shall be eligible to serve on the applicable committee under applicable law or listing standards of the NYSE, including any applicable independence requirements (subject in each case to any applicable exceptions, including those for newly public companies and for “controlled companies,” and any applicable phase-in periods).

(ii)Until the Eldridge Sunset Date, Eldridge shall have the right to appoint one (1) member of each committee of the Board, provided that any such designee shall be eligible to serve on the applicable committee under applicable law or listing standards of the NYSE, including any applicable independence requirements (subject in each case to any applicable exceptions, including those for newly public companies and for “controlled companies,” and any applicable phase-in periods).

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(iii) Any additional members of each committee of the Board shall be determined by the Board.

(iv)Members designated by a Voting Party to serve on a Board committee shall have the right to remain on such committee until the next election of directors, regardless of any decrease in the percentage of the outstanding shares of Common Stock then Beneficially Owned by the Directional Equityholders or Eldridge Equityholders, as applicable, following such designation.

(f)Voting. Each of the Company and the Voting Parties agrees not to take, directly or indirectly, any actions (including removing directors in a manner inconsistent with this Agreement) that would knowingly frustrate, obstruct or otherwise affect the provisions of this Agreement and the intention of the parties hereto with respect to the composition of the Board as herein stated. Each Voting Party, to the extent not prohibited by the Charter, shall vote all Voting Shares Beneficially Owned by such Voting Party in favor of all individuals designated in accordance with this Section 3 and otherwise to effect the intent of the provisions of this Agreement, and the Company shall recommend that stockholders vote in favor of such individuals. Each Voting Party further agrees until the Directional Sunset Date, the Eldridge Sunset Date and the Sponsor Sunset Date, as applicable, (i) to take all Necessary Action reasonably available within their power, including casting all votes to which such Voting Party is entitled in respect of its Voting Shares, whether at any annual or special meeting, by written consent or otherwise, so as to vote its Voting Shares on all matters submitted to the stockholders of the Company in accordance with the recommendation of the Board, and (ii) not to grant, or enter into a binding agreement with respect to, any proxy to any Person in respect of such party’s Common Stock that would prohibit such party from casting such votes in accordance with this Section 3(f).

4.Representations and Warranties of each Voting Party. Each Voting Party on its own behalf and, as applicable, (i) in the case of the Directional Parties, on behalf of each Directional Equityholder, and (ii) in the case of Eldridge, on behalf of each Eldridge Equityholder, hereby represents and warrants to the Company and the other Voting Party, severally and not jointly, with respect to such Voting Party and such Voting Party’s ownership of his, her or its Voting Shares set forth on Annex A, as of the date of this Agreement, as follows:

(a)Organization; Authority. Such Voting Party, if an entity, (i) is duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization and (ii) has all requisite power and authority to enter into this Agreement and to perform its obligations hereunder. This Agreement has been duly authorized, executed and delivered by each Voting Party. This Agreement constitutes a valid and binding obligation of each Voting Party enforceable in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(b)No Consent. Except as provided in this Agreement and for filing requirements under applicable securities laws, no consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority or other Person on the part of each Voting Party is required in connection with the execution, delivery and performance of this Agreement, except where the failure to obtain such consents, approvals or authorizations or to make such designations, declarations or filings would not materially interfere with a Voting Party’s ability to perform its obligations pursuant to this Agreement.

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(c)No Conflicts; Litigation. Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, nor compliance with the terms hereof, will (A) conflict with or violate any provision of the organizational documents of such Voting Party or (B) violate, conflict with or result in a breach of, or constitute a default (with or without notice or lapse of time or both) under any provision of, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise, license, judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to such Voting Party or to such Voting Party’s property or assets, except, in the case of clause (B), that would not reasonably be expected to impair, individually or in the aggregate, the Voting Party’s ability to fulfill its obligations under this Agreement. As of the date of this Agreement, there is no Action pending or, to the knowledge of such Voting Party, threatened, against such Voting Party or any of Voting Party’s Affiliates or any of their respective assets or properties that would materially interfere with such Voting Party’s ability to perform its obligations pursuant to this Agreement or that would reasonably be expected to prevent, enjoin, alter or delay any of the transactions contemplated by this Agreement.

(d)Ownership of Shares. Each Voting Party Beneficially Owns its Voting Shares free and clear of all Liens, other than restrictions under applicable securities laws or this Agreement. Except as pursuant to this Agreement, the Business Combination Agreement and the Registration Rights Agreement, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which a Voting Party is a party relating to the pledge, acquisition, disposition, Transfer or voting of Voting Shares and there are no voting trusts or voting agreements with respect to the Voting Shares. No Voting Party Beneficially Owns (i) any shares of capital stock of the Company other than the Voting Shares set forth on Annex A and (ii) any options, warrants or other rights to acquire any additional shares of capital stock of the Company or any security exercisable for or convertible into shares of capital stock of the Company, other than as set forth on Annex A.

5.Covenants of the Company.

(a)The Company shall (i) take any and all action reasonably necessary to effect the provisions of this Agreement and the intention of the parties with respect to the terms of this Agreement and (ii) not take any action that would reasonably be expected to adversely frustrate, obstruct or otherwise affect the rights of the Voting Parties under this Agreement without the prior written consent of the Voting Parties.

(b)The Company shall (i) purchase and maintain in effect at all times directors’ and officers’ liability insurance in an amount and pursuant to terms determined by the Board to be reasonable and customary, (ii) for so long as any Directional Designee or Eldridge Designee nominated pursuant to this Agreement serves as a director on the Board, maintain such coverage with respect to such Directional Designee and Eldridge Designee, and (iii) cause the Charter and Bylaws to at all times provide for the indemnification, exculpation and advancement of expenses of all directors of the Company to the fullest extent permitted under applicable law.

(c)The Company shall pay all reasonable out-of-pocket expenses incurred by the Directional Designees and Eldridge Designees in connection with the performance of his or her duties as a director and in connection with his or her attendance at any meeting of the Board. The Company shall enter into customary indemnification agreements with each Directional Designee, Eldridge Designee and officer of the Company from time to time.

6.Lock-up.

(a)Subject to Section 6(b) and except as otherwise determined by the Board, each of the Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders agrees that he, she or it shall not Transfer any of his, her or its Lock-Up Shares during the Lock-up Period; provided that, the Lock-up Shares shall be released on and following the date on which (a) the last reported sale price of the Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations and the like) for any 20 consecutive days within a 30-trading day period subsequent to the Closing Date and (b) the average daily trading volume for the shares of Common Stock exceeds 500,000 shares of Common Stock for each trading day during such consecutive 30-trading day period. Any waiver of the restrictions set forth in this Section 6(a) shall require the approval of a majority of the directors of the Board; provided, however, (i) any waiver of the restrictions in this Section 6(a) in respect of Lock-up Shares Beneficially Owned by any of the Directional Equityholders shall require the approval of a majority of the members of the Board who are not Directional Designees, and (ii) any waiver of the restrictions in this Section 6(a) in respect of Lock-up Shares Beneficially Owned by any of the Eldridge Equityholders or Sponsor Equityholders shall require the approval of a majority of the members of the Board excluding the Eldridge Designees.

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(b)Notwithstanding the provisions set forth in Section 6(a), each of the Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders and any of their respective Permitted Transferees (as defined below) shall be permitted, subject to compliance with applicable law, to Transfer their Lock-up Shares during the Lock-up Period (i) to (A) the Company’s officers or directors, (B) any Affiliates or family members of the Company’s officers or directors or (C) with respect to any Directional Equityholder and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Directional Equityholders, any Affiliates of the Directional Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates, with respect to any Eldridge Equityholder and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Eldridge Equityholders, any Affiliates of the Eldridge Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates, or, with respect to any Sponsor Equityholder and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Sponsor Equityholders, any Affiliates of the Sponsor Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates; (ii) in the case of an individual, by gift to a member of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family or an Affiliate of such person; (iii) by gift to a charitable organization; (iv) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (v) in the case of an individual, pursuant to a qualified domestic relations order, (vi) in connection with any bona fide mortgage, encumbrance or pledge to a financial institution in connection with any bona fide loan or debt transaction or enforcement thereunder; (vii) to the Company; or (viii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the Closing Date (each such transferee in clauses (i) – (vii) collectively, a “Permitted Transferee”); provided, however, that in the case of clauses (i) through (v) these Permitted Transferees must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Section 6.

(c)Notwithstanding anything contained herein to the contrary, the Lock-up Period shall expire, and each Directional Equityholder, Eldridge Equityholder, Sponsor Equityholder and its respective Permitted Transferees, shall be entitled to Transfer all of its Lock-up Shares, immediately upon the date on which the Company completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Company’s stockholders having the right to exchange their shares of Common Stock of the Company for cash, securities or other property.

7.Confidentiality. The Company acknowledges that the Directional Designees and Eldridge Designees may, including through one-on-one conversations, communicate confidential information obtained in each of their respective capacities as a director of the Company to the officers, employees, external counsel, accountants or other third-party advisors (collectively, “Representatives”) of the Directional Equityholders and the Eldridge Equityholders, each of whom shall have a duty and obligation to keep such information confidential, in each case, in accordance with and subject to this Section 7. The Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders will, and will cause their respective Affiliates and direct their respective Representatives who actually receive Confidential Information to, except as otherwise required by applicable law, keep confidential any information (including oral, written and electronic information) concerning the Company, its subsidiaries or its Affiliates that may be furnished to any Directional Equityholder, Eldridge Equityholder or their respective Representatives by or on behalf of the Company or any of its Representatives pursuant to this Section 7 (“Confidential Information”); provided, that Confidential Information will not include information that (a) was or becomes available to the public other than as a result of a breach of any confidentiality obligation in this Agreement, (b) was or becomes available to the Directional Equityholders, the Eldridge Equityholders, the Sponsor Equityholders or their respective Representatives from a source other than the Company or its Representatives or (c) was independently developed by the Directional Equityholders, the Eldridge Equityholders, the Sponsor Equityholders or their respective representatives without reference to, incorporation of, or other use of any Confidential Information.

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8.No Other Voting Trusts or Other Arrangement. Each Voting Party shall not, and shall not permit any entity under such Voting Party’s control to (i) deposit any Voting Shares or any interest in any Voting Shares in a voting trust, voting agreement or similar agreement, (ii) grant any proxies, consent or power of attorney or other authorization or consent with respect to any of the Voting Shares or (iii) subject any of the Voting Shares to any arrangement with respect to the voting of the Voting Shares, in each case, that conflicts with or prevents the implementation of this Agreement.

9.Additional Shares. Each Voting Party agrees that all securities of the Company that may vote in the election of the Company’s directors that such Voting Party purchases, acquires the right to vote or otherwise acquires Beneficial Ownership of (including by the exercise or conversion of any security exercisable or convertible for shares of Common Stock) after the execution of this Agreement shall be subject to the terms of this Agreement and shall constitute Voting Shares for all purposes of this Agreement.

10.Specific Enforcement. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any party hereto and, accordingly, that this Agreement shall be specifically enforceable, in addition to any other remedy to which such injured party is entitled at law or in equity, and that any breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach or an award of specific performance is not an appropriate remedy for any reason at law or equity and agrees that a party’s rights would be materially and adversely affected if the obligations of the other parties under this Agreement were not carried out in accordance with the terms and conditions hereof. Each party further agrees that no party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtain any remedy referred to in this Section 10, and each party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

11.Termination. Following the Closing:

(a)Sections 2, 3, and 5 of this Agreement shall terminate automatically (without any action by any party hereto) on the first date on which no Voting Party has the right to designate a director to the Board under this Agreement; provided, that the provisions in Section 5(b) shall survive such termination;

(b)Section 7 of this Agreement shall terminate (i) as to the Directional Parties one (1) year after the last Directional Designee no longer serves on the Board and (ii) as to Eldridge one (1) year after the last Eldridge Designee no longer serves on the Board; and

(c)the remainder of this Agreement shall terminate automatically (without any action by any party hereto) (i) as to the Directional Parties when the Directional Equityholders cease to Beneficially Own any Voting Shares, (ii) as to Eldridge when the Eldridge Equityholders cease to Beneficially Own any Voting Shares and (iii) as to Sponsor when the Sponsor Equityholders cease to Beneficially Own any Voting Shares.

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12.Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Company and the Voting Parties. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.

13.Stock Splits, Stock Dividends, etc. In the event of any stock split, stock dividend, recapitalization, reorganization or the like, any securities issued with respect to Voting Shares held by Voting Parties shall become Voting Shares for purposes of this Agreement.

14.Assignment.

(a)Neither this Agreement nor any of the rights, duties, interests or obligations of the Company hereunder shall be assigned or delegated by the Company in whole or in part.

(b)Prior to the expiration of the Lock-up Period, no Voting Party may assign or delegate such Voting Party’s rights, duties or obligations under this Agreement, in whole or in part, except in connection with a Transfer of Voting Shares by such Voting Party to a Permitted Transferee in accordance with the terms of the Registration Rights Agreement, Section 6(b) of this Agreement, and this Section 14; provided, that the rights hereunder that are personal to the Voting Parties may not be assigned or delegated in whole or in part, except that (i) the Directional Equityholders shall be permitted to transfer rights hereunder as the Directional Equityholders to one or more other Directional Equityholders or any of their respective Affiliates or direct or indirect partners, members or equity holders (each, a “Directional Transferee”), (ii) the Eldridge Equityholders shall be permitted to transfer rights hereunder as the Eldridge Equityholders to one or more other Eldridge Equityholders or any of their respective Affiliates or direct or indirect partners, members or equity holders (each, a “Eldridge Transferee”), (iii) the Sponsor Equityholders shall be permitted to transfer rights hereunder as the Sponsor Equityholders to one or more other Sponsor Equityholders or any of their respective Affiliates or direct or indirect partners, members or equity holders (each, a “Sponsor Transferee”) and (iv) each Directional Transferee shall be designated as a “Directional Equityholder,” each Eldridge Transferee shall be designated as an “Eldridge Equityholder,” and each Sponsor Transferee shall be designated as a “Sponsor Equityholder”, in each case, for purposes of this Agreement as if such Permitted Transferee were an initial signatory hereto.

(c)This Agreement and the provisions hereof shall inure to the benefit of, shall be enforceable by and shall be binding upon the respective assigns and successors in interest of the Voting Parties, including with respect to any of such Voting Party’s Voting Shares that are transferred to a Permitted Transferee in accordance with the terms of this Agreement and the Registration Rights Agreement.

(d)No assignment in accordance with this Section 14 by any party hereto (including pursuant to a transfer of any Voting Party’s Voting Shares) of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company or any other party hereto unless and until each of the other parties hereto shall have received (i) written notice of such assignment as provided in Section 22 and (ii) the executed written agreement of the assignee, in a form reasonably satisfactory to each of the other parties hereto, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement) as fully as if it were an initial signatory hereto. Each Voting Party shall not permit the transfer of any such Voting Party’s Voting Shares to a Permitted Transferee unless and until the person to whom such securities are to be transferred has executed a written agreement as provided in clause (ii) of the preceding sentence.

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(e) Any transfer or assignment made other than as provided in this Section 14 shall be null and void.

(f)Notwithstanding anything herein to the contrary, for purposes of determining the number of shares of capital stock of the Company held by the Voting Parties, the aggregate number of shares so held by the Voting Parties shall include any shares of capital stock of the Company transferred or assigned to a Permitted Transferee in accordance with the provisions of this Section 14; provided, that any such Permitted Transferee has executed a written agreement agreeing to be bound by the terms and provisions of this Agreement as contemplated by Section 14(d) above, including agreeing to vote or cause to be voted the Voting Shares Beneficially Owned by such Permitted Transferee as required of a Voting Party hereunder.

15.Other Rights. Except as provided by this Agreement, each Voting Party shall retain the full rights of a holder of shares of capital stock of the Company with respect to the Voting Shares, including the right to vote the Voting Shares subject to this Agreement.

16.Severability. In the event that any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

17.Governing Law. This Agreement, the rights and duties of the parties hereto, any disputes (whether in contract, tort or statute), and the legal relations between the parties arising hereunder shall be governed by and interpreted and enforced in accordance with the laws of the State of Delaware without reference to its conflicts of laws provisions.

18.Jurisdiction. Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement shall be brought against any of the parties in the United States District Court for the District of Delaware or any Delaware state court located in Wilmington, Delaware, and each of the parties hereby consents to the exclusive jurisdiction of such court (and of the appropriate appellate courts) in any such suit, action or proceeding and waives any objection to venue laid therein. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

19.WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

20.Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

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21.Notices. Any notices provided pursuant to this Agreement shall be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery or (iii) transmission by electronic mail. Notices provided pursuant to this Agreement shall be addressed as follows:

If to the Company:

Flexjet, Inc.
Cuyahoga County Airport

26180 Curtiss Wright Parkway

Cleveland, Ohio 44143
Attention:        Kenneth C. Ricci

with a copy to (which shall not constitute notice):

White & Case LLP
555 South Flower Street, Suite 2700
Los Angeles, California 90071-2433
Attention:        Daniel Nussen

Email:                daniel.nussen@whitecase.com

If to Directional:

Directional Capital LLC
355 Richmond Road

Cleveland, Ohio 44143

Attention:        Kenneth C. Ricci

with a required copy to (which copy shall not constitute notice):

355 Richmond Road

Cleveland, Ohio 44143

Attention: Debra Perelman, Esq.

If to Eldridge:

Eldridge Industries, LLC

600 Steamboat Road, Suite 200
Greenwich, CT 06830
Attention:        General Counsel

If to Sponsor:

Horizon II Sponsor, LLC
600 Steamboat Road, Suite 200
Greenwich, CT 06830
Attention:        General Counsel

22.Entire Agreement. This Agreement constitutes the full and entire understanding and agreement among the parties, and supersedes any prior agreement or understanding among the parties, with regard to the subject matter hereof, and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein.

[Remainder of page intentionally left blank; signature pages follow]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.

COMPANY:

FLEXJET, INC.

By:

Name:

Title:

[Signature Page to Stockholders Agreement]

VOTING PARTIES:

DIRECTIONAL CAPITAL LLC

By:

Name:

Title:

ELDRIDGE INDUSTRIES, LLC

By:

Name:

Title:

HORIZON II SPONSOR, LLC

By:

Name:

Title:

Kenneth C. Ricci

Michael A. Rossi

[Signature Page to Stockholders Agreement]

ANNEX A
Voting Shares

Voting Party	Shares of Common Stock	Warrants
Directional Capital LLC
Kenneth C. Ricci
Michael A. Rossi
Eldridge Industries, LLC
Horizon II Sponsor, LLC

EX-10.7

Exhibit 10.7

AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of [●], 2023, is made and entered into by and among Flexjet, Inc., a Delaware corporation (the “Company”), Flexjet Sub, LLC, a Delaware limited liability company and successor in interest to Horizon Acquisition Corporation II (“Horizon”) and a direct wholly-owned subsidiary of the Company (“Merger Sub 2”), Directional Capital LLC, a Delaware limited liability company (“Directional”), Eldridge Industries, LLC, a Delaware limited liability company (“Eldridge”), Horizon II Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), and the undersigned parties listed under “Epic Holders” on the signature page(s) hereto (each such party an “Epic Holder,”^[1] and, together with Eldridge, Directional, Sponsor and any other person or entity who is identified on the signature pages hereto as a “Holder” or hereafter becomes a party to this Agreement pursuant to Section 5.2 of this Agreement, the “Holders” and each, a “Holder”).

RECITALS

WHEREAS, Merger Sub 2, as successor in interest to Horizon, and the Sponsor are party to that certain Registration and Shareholder Rights Agreement, dated as of October 22, 2020 (the “Original Agreement”);

WHEREAS, the Company, Horizon, OTH Merger Sub 1, LLC, a Delaware limited liability company (“Merger Sub 1”), Merger Sub 2, and Epic Aero, Inc., a Delaware corporation (“Epic”), have entered into that certain Business Combination Agreement, dated as of October 11, 2022 (as it may be amended or supplemented from time to time, the “Business Combination Agreement”), pursuant to which, among other things, (i) Horizon merged with and into Merger Sub 2 with Merger Sub 2 surviving such merger as a direct, wholly owned subsidiary of Flexjet, and (ii) Merger Sub 1 merged with and into a Delaware corporation that will be formed prior to the Closing (the “Combined TargetCo”), with Combined TargetCo surviving such merger as an indirect, wholly owned subsidiary of Flexjet.

WHEREAS, in connection with the consummation of the transactions described above, Merger Sub 2 (as successor in interest to Horizon) and the Sponsor desire to amend and restate the Original Agreement in its entirety as set forth herein, and the Company and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration rights with respect to certain securities of the Company, as set forth in this Agreement.

NOW, THEREFORE, in consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

Article I

Definitions

1.1Definitions. Capitalized terms used herein but not defined in this Agreement shall have the meanings ascribed to them in the Business Combination Agreement. The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:

“$10.00 Exercise Warrants” means the warrants to purchase shares of Common Stock at an exercise price of $10.00 per share.

¹ Note to Draft: To include the Pubco’s directors, officers and affiliates. 

“$15.00 Exercise Warrants” means the warrants to purchase shares of Common Stock at an exercise price of $15.00 per share.

“Action” means any claim, complaint, action, suit, proceeding, audit, examination, assessment, arbitration, litigation, mediation or investigation, by or before any Governmental Authority.

“Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Board, the Chief Executive Officer or principal financial officer of the Company, after consultation with counsel to the Company, (a) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (b) would not be required to be made at such time if the Registration Statement were not being filed, declared effective or used, as the case may be, and (c) as to which the Company has a bona fide business purpose for not making such information public.

“Affiliate” means, with respect to any specified person, any other person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified person, whether through one or more intermediaries or otherwise. The term “control” (including, with correlative meaning, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” has the meaning given in the Preamble hereto.

“Automatic Shelf Registration Statement” has the meaning set forth in Rule 405 promulgated by the Commission pursuant to the Securities Act.

“Board” means the board of directors of the Company.

“Business Combination Agreement” has the meaning given in the Recitals hereto.

“Common Stock” means the common stock, par value $0.0001 per share, of the Company.

“Closing” means the closing of the transactions contemplated by the Business Combination Agreement.

“Closing Date” means [●], 2023.

“Commission” means the Securities and Exchange Commission.

“Company” has the meaning given in the Preamble hereto and includes the Company’s successors by recapitalization, merger, consolidation, spin-off, reorganization or similar transaction.

“Demanding Holder” has the meaning given in subsection 2.1.3.

“Demand Registration” has the meaning given in subsection 2.1.3.

“Directional” has the meaning given in the Preamble hereto.

“Eldridge” has the meaning given in the Preamble hereto.

“Exchange Act” means the Securities Exchange Act of 1934, as it may be amended from time to time.

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“Form S-1 Shelf” has the meaning given in subsection 2.1.1.

“Form S-3 Shelf” has the meaning given in subsection 2.1.1.

“Governmental Authority” means any federal, state, provincial, municipal, local, or foreign (a) government or governmental authority, (b) regulatory or administrative agency, (c) governmental commission, department, board, bureau, agency or instrumentality, or (d) court or tribunal.

“Holders” has the meaning given in the Preamble hereto, for so long as such person or entity holds any Registrable Securities.

“Holder Information” has the meaning given in subsection 4.1.2.

“Horizon” has the meaning given in the Preamble hereto.

“Lock-up Period” has the meaning given to such term in the Stockholders’ Agreement.

“Maximum Number of Securities” has the meaning given in subsection 2.1.5.

“Minimum Demand Threshold” has the meaning given in subsection 2.1.4.

“Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus, in the light of the circumstances under which they were made, not misleading.

“Original Agreement” has the meaning given in the Recitals hereto.

“Permitted Transferee” means (i) any person or entity to whom a Holder of Registrable Securities is permitted to Transfer such Registrable Securities or (ii) any other person or entity with the prior written consent of the Company, including prior to the expiration of the any lock-up period applicable to such Registrable Securities, subject to and in accordance with any applicable agreement between such Holder and/or their respective Permitted Transferees and the Company, and any transferee thereafter.

“Piggyback Registration” has the meaning given in subsection 2.2.1.

“Private Placement Warrants” means the warrants to purchase shares of Common Stock at an exercise price of $11.50 per share that were initially issued to the Sponsor in the private placement that occurred concurrently with the closing of Horizon’s initial public offering and which were assumed by the Company in connection with the transactions contemplated by the Business Combination Agreement.

“Prospectus” means the prospectus included in any Registration Statement, (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance on Rules 430A or 430B under the Securities Act or any successor rule thereto), as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all materials incorporated by reference in such prospectus.

“Registrable Security” means (a) any outstanding shares of Common Stock or shares of Common Stock issuable upon the exercise of any Warrants held by a Holder immediately following the Closing, or that a Holder has the right to receive pursuant to the Business Combination Agreement, but exclude any security received pursuant to an incentive plan adopted by the Company or its subsidiaries on or after the Closing Date; (b) any outstanding shares of Common Stock or warrants to purchase shares of Common Stock (including any shares of Common Stock issued or issuable upon the exercise of any such warrant) of the Company acquired by a Holder following the date hereof to the extent that such securities are “restricted securities” (as defined in Rule 144) or are otherwise held by an “affiliate” (as defined in Rule 144) of the Company; and (c) any other equity security of the Company or any of its subsidiaries issued or issuable with respect to any securities referenced in clause (a) or (b) above by way of a stock dividend or stock split or in connection with a conversion, distribution, exchange, reclassification, recapitalization, merger, consolidation, spin-off, reorganization or similar transaction; provided, however, that, as to any particular Registrable Security, such securities shall cease to constitute Registrable Securities upon the earliest to occur of: (i) the date on which such securities have been sold, transferred, disposed of or exchanged pursuant to an effective Registration Statement, pursuant to Rule 144 under the Securities Act or any other exemption from registration under the securities laws of the United States; (ii) the date on which such securities cease to be outstanding; (iii) the date on which such securities may be sold, transferred, disposed of or exchanged without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) (but with no volume or other restrictions or limitations including as to manner or timing of sale); and (iv) the date on which such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

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“Registration” means a registration, including any related Shelf Takedown, effected by preparing and filing a registration statement, prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.

“Registration Expenses” means the documented, out-of-pocket expenses of a Registration, including, without limitation, the following:

(a)all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the Common Stock is then listed;

(b)fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of outside counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

(c)printing, messenger, telephone and delivery expenses;

(d)reasonable fees and disbursements of counsel for the Company;

(e)reasonable fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and

(f)reasonable fees and expenses of one (1) legal counsel (not to exceed $100,000 in the aggregate for each Registration without prior approval of the Company) selected by the majority-in-interest of the Demanding Holders in an Underwritten Offering.

“Registration Statement” means any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

“Requesting Holder” means any Holder requesting piggyback rights pursuant to this Agreement with respect to a Demand Registration or an Underwritten Shelf Takedown.

“Securities Act” means the Securities Act of 1933, as amended.

“Shelf” has the meaning given in subsection 2.1.1.

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“Shelf Registration” means a registration of securities pursuant to a registration statement filed with the Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).

“Shelf Takedown” means an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.

“Sponsor” has the meaning given in the Preamble hereto.

“Stockholders’ Agreement” means that certain Stockholders’ Agreement, dated as of [●], 2023, by and among the Company, the Sponsor, Directional, Eldridge and the other parties thereto.

“Subsequent Shelf Registration” has the meaning given in subsection 2.1.2.

“Transfer” means the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).

“Underwriter” means any investment banker(s) and manager(s) appointed to administer the offering of any Registrable Securities as principal in an Underwritten Offering.

“Underwritten Offering” means a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

“Underwritten Shelf Takedown” has the meaning given in subsection 2.1.4.

“Warrants” means the Private Placement Warrants, the $10.00 Exercise Warrants and the $15.00 Exercise Warrants.

“Well-Known Seasoned Issuer” has the meaning set forth in Rule 405 promulgated by the Commission pursuant to the Securities Act.

“Withdrawal Notice” has the meaning given in subsection 2.1.6.

Article II

Registrations and Offerings

2.1Shelf Registration.

2.1.1Filing. The Company shall file (or confidentially submit) within 30 days of the Closing Date (the “Filing Deadline”), a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if the Company is eligible to use a Registration Statement on Form S-3, a Shelf Registration Statement on Form S-3 (the “Form S-3 Shelf,” and together with the Form S-1 Shelf, as applicable (and any Subsequent Shelf Registration), the “Shelf”), in each case, covering the resale of all the Registrable Securities (determined as of two (2) business days prior to such filing or submission) on a delayed or continuous basis and containing a Prospectus in such form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 at any time beginning on the effective date of such Shelf. The Company shall use commercially reasonable efforts to cause the Shelf to become effective as soon as practicable after such filing, but in no event later than 60 calendar days following the Filing Deadline (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended to 90 calendar days after the Filing Deadline if the Shelf is reviewed by, and receives comments from, the Commission. The Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. The Company shall maintain a Shelf in accordance with the terms hereof, and shall prepare and file with the Commission such amendments, including post-effective amendments, and supplements as may be necessary to keep such Shelf continuously effective, available for use to permit the Holders named therein and any Permitted Transferees of Registrable Securities to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1 Shelf, the Company shall use its reasonable best efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as practicable after the Company is eligible to use Form S-3. The Company’s obligations under this subsection 2.1.1, shall, for the avoidance of doubt, be subject to Section 3.4.

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2.1.2Subsequent Shelf Registration. If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall, subject to Section 3.4 use its reasonable best efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including using commercially reasonable efforts to obtain the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use its reasonable best efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional registration statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale of all Registrable Securities (determined as of two (2) business days prior to such filing), and pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. If a Subsequent Shelf Registration is filed, the Company shall use its reasonable best efforts to (a) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an Automatic Shelf Registration Statement if the Company is a Well-Known Seasoned Issuer at the most recent applicable eligibility determination date) and (b) keep such Subsequent Shelf Registration continuously effective, available for use to permit the Holders named therein to sell their Registrable Securities included therein and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. If the Company files a Form S-3 Shelf and thereafter the Company becomes ineligible to use Form S-3 for secondary sales, the Company shall use its reasonable best efforts to file a Form S-1 Shelf as promptly as reasonably practicable to replace the shelf registration statement that is a Form S-3 Shelf and have the Form S-1 Shelf declared effective as promptly as reasonably practicable and to cause such Form S-1 Shelf to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, that another Registration Statement is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased to be Registrable Securities

2.1.3Demand Registration Rights. Subject to the provisions of subsection 2.1.5 and Section 3.4, at any time that a Shelf provided for in Section 2.1 is not available for use by either Eldridge or Directional following such Shelf being declared effective by the Commission, at any time and from time to time, either Eldridge or Directional (in such case, a “Demanding Holder”) shall have the right to make a written demand for Registration of all or part of their Registrable Securities, which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand a “Demand Registration”); provided that the Company shall only be obligated to effect a Demand Registration if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder with a total offering price (including piggyback securities and before underwriting discounts) reasonably expected to exceed the Minimum Demand Threshold (as defined below). The Company shall, within ten (10) days of the Company’s receipt of the Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to such Demand Registration (each such Holder that wishes to include all or a portion of such Holder’s Registrable Securities in such Registration, a “Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the receipt by such Requesting Holder of the Demand Registration notice from the Company. Upon receipt by the Company of any such written notification from a Requesting Holder(s) to the Company, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration Statement pursuant to such Demand Registration and the Company shall effect, as soon thereafter as practicable, but in no event more than forty-five (45) calendar days after the Company’s receipt of the Demand Registration, the Registration of all Registrable Securities requested by the Demanding Holders and Requesting Holders pursuant to such Demand Registration.

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2.1.4Requests for Underwritten Shelf Takedowns. At any time and from time to time after the Shelf has been declared effective by the Commission, Eldridge or Directional (in such case, a “Demanding Holder”) may, subject to the provisions of subsection 2.1.5 and Section 3.4 hereof, may request to sell all or any portion of its Registrable Securities in an Underwritten Offering that is registered pursuant to the Shelf (each, an “Underwritten Shelf Takedown”); provided that the Company shall only be obligated to effect an Underwritten Shelf Takedown if such offering shall include Registrable Securities proposed to be sold by the Demanding Holder with a total offering price (including piggyback securities and before underwriting discounts) reasonably expected to exceed, in the aggregate, $50,000,000 (the “Minimum Demand Threshold”). The right of such Demanding Holders or Requesting Holder(s) (if any) to include their Registrable Securities in such Underwritten Offering shall be conditioned upon such Demanding Holders’ or Requesting Holder(s)’ (if any) participation in such Underwritten Offering. All requests for Underwritten Shelf Takedowns shall be made by giving written notice to the Company, which shall specify the approximate number of Registrable Securities proposed to be sold in the Underwritten Shelf Takedown and the expected price range (net of underwriting discounts and commissions) of such Underwritten Shelf Takedown. The Holders that requested such Underwritten Shelf Takedown shall have the right to select the Underwriters for such offering (which shall consist of one (1) or more reputable nationally recognized investment banks), subject to the initial Demanding Holder’s prior approval (which shall not be unreasonably withheld, conditioned or delayed). Eldridge, on the one hand, and Directional, on the other hand, may each demand not more than two (2) Registrations pursuant to a Demand Registration (which includes an Underwritten Shelf Takedown) under subsections 2.1.3 and 2.14 in any twelve-month period and the Company shall be obligated to effect no more than a total of three (3) such Registrations in any twelve-month period. Notwithstanding anything to the contrary in this Agreement, the Company may effect any Underwritten Offering pursuant to any then effective Registration Statement, including a Form S-3 that is then available for such offering.

2.1.5Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Shelf Takedown, in good faith, advise the Company, the Demanding Holders and the Holders requesting piggyback rights pursuant to this Agreement with respect to such Underwritten Shelf Takedown (the “Requesting Holders”) (if any) in writing that the dollar amount or number of Registrable Securities that the Demanding Holders and the Requesting Holders (if any) desire to sell, taken together with all other equity securities that the Company desires to sell and all other equity securities, if any, that have been requested to be sold in such Underwritten Offering pursuant to separate written contractual piggyback registration rights held by any other shareholders, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (a) first, the Registrable Securities of the Demanding Holders (pro rata based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Underwritten Shelf Takedown and the aggregate number of Registrable Securities that all of the Demanding Holders have requested be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities; (b) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (a), the Registrable Securities of Requesting Holders (pro rata based on the respective number of Registrable Securities that each Requesting Holder has requested to be included in such Underwritten Shelf Takedown) that can be sold without exceeding the Maximum Number of Securities; (c) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (a) and (b), the equity securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Securities; and (c) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (a), (b) and (c), such other equity securities of other persons or entities that the Company is obligated to include in such Underwritten Offering pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.

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2.1.6Demand Registration Withdrawal. A majority-in-interest of the Demanding Holders initiating an Underwritten Shelf Takedown shall have the right to withdraw from such Demand Registration or Underwritten Shelf Takedown for any or no reason whatsoever upon written notification (a “Withdrawal Notice”) to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Registration at least two (2) business days prior to the effectiveness of the Registration Statement filed with the Commission with respect to the Registration of their Registrable Securities pursuant to such Demand Registration or, in the case of an Underwritten Shelf Takedown at least five (5) business days prior to the time of pricing of the applicable offering; provided that Directional or Eldridge may elect to have the Company continue an Underwritten Shelf Takedown if the Minimum Demand Threshold would still be satisfied by the Registrable Securities proposed to be sold in the Underwritten Shelf Takedown by Directional or Eldridge, as applicable. If withdrawn, a demand for a Demand Registration or an Underwritten Shelf Takedown shall constitute a demand for a Demand Registration by the withdrawing Demanding Holder for purposes of subsection 2.1.4, unless either (a) such withdrawal occurs during a period the Company has deferred taking action pursuant to Section 3.4 hereof or (b) the withdrawing Demanding Holder reimburses the Company for all Registration Expenses with respect to such Demand Registration or Underwritten Shelf Takedown (or, if there is more than one Demanding Holder, a pro rata portion of such Registration Expenses based on the respective number of Registrable Securities that each Demanding Holder has requested be included in such Demand Registration or Underwritten Shelf Takedown); provided that, if Directional or Eldridge elects to continue an Underwritten Shelf Takedown pursuant to the proviso in the immediately preceding sentence, such Demand Registration or Underwritten Shelf Takedown shall instead count as a Demand Registration demanded by Directional or Eldridge, as applicable, for purposes of subsection 2.1.4. Following the receipt of any Withdrawal Notice, the Company shall promptly forward such Withdrawal Notice to any other Holders that had elected to participate in such Registration. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Demand Registration prior to its withdrawal under this subsection 2.1.6, other than if a Demanding Holder elects to pay such Registration Expenses pursuant to the second sentence of this subsection 2.1.6.

2.2Piggyback Registration.

2.2.1Piggyback Rights. Subject to Section 3.4, if the Company (for its own account or for the account of persons or entities other than the Holders of Registrable Securities) or any Holder proposes to conduct a registered offering of, or if the Company proposes to file a Registration Statement under the Securities Act with respect to the Registration of equity securities of the Company, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities of the Company, for its own account or for the account of shareholders of the Company (or by the Company and by the shareholders of the Company including, without limitation, an Underwritten Shelf Takedown pursuant to Section 2.1 hereof), other than a Registration Statement (or any registered offering with respect thereto) (a) filed in connection with any employee stock option or other benefit plan, (b) pursuant to a Registration Statement on Form S-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (c) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (d) for an offering of debt that is convertible into equity securities of the Company or (e) for a dividend reinvestment plan, then the Company shall give written notice of such proposed offering to all of the Holders of Registrable Securities as soon as practicable but not less than seven (7) days before the anticipated filing date of such Registration Statement or, in the case of an Underwritten Offering pursuant to a Shelf Registration, the launch date of such offering, which notice shall (i) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any and if known, in such offering, and (ii) offer to all of the Holders of Registrable Securities the opportunity to include in such registered offering such number of Registrable Securities as such Holders may request in writing within three (3) days after receipt of such written notice (such registered offering, a “Piggyback Registration”). Subject to subsection 2.2.2, the Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and, if applicable, shall use its reasonable best efforts to cause the managing Underwriter or Underwriters of such Piggyback Registration to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.2.1 to be included therein on the same terms and conditions as any similar securities of the Company included in such registered offering and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. The inclusion of any Holder’s Registrable Securities in a Piggyback Registration shall be subject to such Holder’s agreement to abide by the terms of Section 3.3 below.

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2.2.2Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of the equity securities that the Company desires to sell, taken together with (a) the Registrable Securities, if any, as to which registration has been requested pursuant to Section 2.2 hereof and (b) the equity securities, if any, as to which Registration or a registered offering has been requested pursuant to separate written contractual registration rights of other shareholders of the Company, exceeds the Maximum Number of Securities, then:

(i)If the Registration or registered offering is undertaken for the Company’s account, the Company shall include in any such Registration or registered offering (A) first, the equity securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1 hereof, pro rata based on the respective number of Registrable Securities that each Holder has requested be included in such Registration and the aggregate number of Registrable Securities that the Holders have requested to be included in such Registration, that can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the equity securities, if any, as to which Registration or a registered offering has been requested pursuant to written contractual piggyback registration rights of other shareholders of the Company, that can be sold without exceeding the Maximum Number of Securities;

(ii)If the Registration or registered offering is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration or registered offering (A) first, the equity securities of such requesting persons or entities that can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1, pro rata based on the number of Registrable Securities that each Holder has requested be included in such Underwritten Offering relative to the aggregate number of Registrable Securities that all Holders have requested to be included in such Underwritten Offering, that can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the equity securities that the Company desires to sell that can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), the equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual piggyback arrangements with such persons or entities that can be sold without exceeding the Maximum Number of Securities.

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(iii)If the Registration or registered offering and Underwritten Shelf Takedown is pursuant to a request by Holder(s) of Registrable Securities pursuant to Section 2.1 hereof, then the Company shall include in any such Registration or registered offering securities in the priority set forth in subsection 2.1.5.

2.2.3Piggyback Registration Withdrawal. Any Holder of Registrable Securities (other than a Demanding Holder, whose right to withdraw from a Demand Registration or an Underwritten Shelf Takedown, and related obligations, shall be governed by subsection 2.1.6) shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration or, in the case of a Piggyback Registration pursuant to a Shelf Registration, the filing of the applicable “red herring” prospectus or prospectus supplement with respect to such Piggyback Registration used for marketing such transaction. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration (which, in no circumstance, shall include a Shelf) at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement (other than subsection 2.1.6), the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.2.3.

2.2.4Unlimited Piggyback Registration Rights. For purposes of clarity, subject to subsection 2.1.6, any Piggyback Registration effected pursuant to Section 2.2 hereof shall not be counted as a Registration pursuant to a Demand Registration under subsections  2.1.3 or 2.1.4 hereof.

2.3Market Stand-off. In connection with any Underwritten Offering of equity securities of the Company, if requested by the managing Underwriters, each Holder that holds more than 5% of the issued and outstanding Common Stock and each Holder participating in the Underwritten Offering, agrees that it shall not Transfer any shares of Common Stock (other than those included in such Underwritten Offering pursuant to this Agreement), without the prior written consent of the Company, during the seven (7) days prior (to the extent notice of such Underwritten Offering has been provided) to and the 90-day period (or such shorter time agreed to by the managing Underwriters) beginning on the date of pricing of such offering, except as expressly permitted by any applicable lock-up agreement in favor of the Underwriters or in the event the managing Underwriters otherwise agree by written consent. Each Holder agrees to execute a customary lock-up agreement in favor of the Underwriters to such effect (in each case on substantially the same terms and conditions as all such Holders). Notwithstanding the foregoing, with respect to an Underwritten Offering, a Holder shall not be subject to this Section 2.3 with respect to an Underwritten Offering unless each shareholder of the Company that (together with their Affiliates) hold at least 5% of the issued and outstanding Common Stock and each of the Company’s directors and executive officers have agreed to a lock-up on terms at least as restrictive with respect to such Underwritten Offering as requested of the Holders. A Holder’s obligations under the second sentence of this Section 2.3 shall only apply for so long as such Holder (together with its Affiliates) holds at least 5% of the issued and outstanding Common Stock.

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Article III

Company Procedures

3.1General Procedures. In connection with effecting any Shelf Registration, Shelf Takedown and/or other disposition of Registrable Securities pursuant to a Registration Statement contemplated herein (to the extent applicable), the Company shall use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall:

3.1.1prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be Registrable Securities;

3.1.2prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by any Holder that holds at least five (5) percent of the Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the Registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus or have ceased to be Registrable Securities;

3.1.3prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders; provided that the Company shall have no obligation to furnish any documents publicly filed or furnished with the Commission pursuant to the Electronic Data Gathering, Analysis and Retrieval System (“EDGAR”);

3.1.4prior to any public offering of Registrable Securities, use its reasonable best efforts to (a) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request (or provide evidence satisfactory to such Holders that the Registrable Securities are exempt from such Registration or qualification) and (b) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

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3.1.5cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;

3.1.6provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

3.1.7advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

3.1.8at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus (or such shorter period of time as may be (a) necessary in order to comply with the Securities Act, the Exchange Act, and the rules and regulations promulgated under the Securities Act or Exchange Act, as applicable or (b) advisable in order to reduce the number of days that sales are suspended pursuant to Section 3.4), furnish a copy thereof to each seller of such Registrable Securities or its counsel (excluding any exhibits thereto and any filing made under the Exchange Act that is to be incorporated by reference therein);

3.1.9notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;

3.1.10in the event of any Underwritten Offering or Demand Offering, permit representatives of the Holders, the Underwriters or other financial institutions facilitating each transaction, if any, and any attorney, consultant or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, financial institution, attorney, consultant or accountant in connection with the Registration; provided, however, that such representatives, Underwriters or financial institutions agree to confidentiality arrangements reasonably satisfactory to the Company, prior to the release or disclosure of any such information;

3.1.11obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering or other disposition pursuant to a registration statement contemplated herein that is facilitated by a financial institution which the participating Holders may rely on, in customary form and covering such matters of the type customarily covered by “cold comfort” letters for a transaction of its type as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;

3.1.12in the event of any Underwritten Offering, on the date the Registrable Securities are delivered for sale pursuant to such Registration, to the extent customary for a transaction of its type, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the participating Holders, the placement agent or sales agent, if any, and the Underwriters or financial institution, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, placement agent, sales agent, Underwriter or financial institution may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders, as applicable;

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3.1.13in the event of any Underwritten Offering or other disposition pursuant to a registration statement contemplated herein that is facilitated by a financial institution or similar agent, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering or such applicable financial institution;

3.1.14make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission), and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;

3.1.15with respect to an Underwritten Offering pursuant to subsection 2.1.4, use its reasonable best efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in such Underwritten Offering; and

3.1.16otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the participating Holders, in connection with such Registration.

Notwithstanding the foregoing, the Company shall not be required to provide any documents or information to an Underwriter, broker, sales agent or placement agent if such Underwriter, broker, sales agent or placement agent has not then been named with respect to the applicable Underwritten Offering or other offering involving a registration as an Underwriter, broker, sales agent or placement agent, as applicable.

3.2Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.

3.3Requirements for Participation in Underwritten Offerings. Notwithstanding anything in this Agreement to the contrary, if any Holder does not provide the Company with its requested Holder Information, the Company may exclude such Holder’s Registrable Securities from the applicable Registration Statement or Prospectus if the Company determines, based on the advice of counsel, that such information is necessary to effect the registration and such Holder continues thereafter to withhold such information. No Holder may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such Holder (a) agrees to sell such Holder’s securities on the basis provided in any underwriting and other arrangements approved by the Company and (b) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements. Subject to the minimum thresholds set forth in subsections  2.1.3 and 2.1.4 of this Agreement, the exclusion of a Holder’s Registrable Securities as a result of this Section 3.3 shall not affect the registration of the other Registrable Securities to be included in such Registration.

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3.4 Suspension of Sales; Adverse Disclosure; Restrictions on Registration Rights.

3.4.1Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each Holder shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as reasonably practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed.

3.4.2If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would (a) require the Company to make an Adverse Disclosure, (b) require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control or (c) in the good faith judgment of the majority of the Board, be seriously detrimental to the Company, and the majority of the Board concludes as a result that it is essential to defer such filing, initial effectiveness or continued use at such time, the Company may, upon giving prompt written notice of such action to the Holders (which notice shall not specify the nature of the event giving rise to such delay or suspension), delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than sixty (60) days, determined in good faith by the Company to be necessary for such purpose; provided that such right to delay or suspend shall be exercised by the Company not more than two (2) times, which may be consecutive, in any 12-month period. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section 3.4.

3.4.3(a) During the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, a Company-initiated Registration and provided that the Company continues to actively employ, in good faith, all reasonable efforts to maintain the effectiveness of the applicable Shelf Registration Statement, or (b) if, pursuant to subsection 2.1.4, a Demanding Holder has requested an Underwritten Shelf Takedown and the Company and such Demanding Holder are unable to obtain the commitment of underwriters to firmly underwrite such offering, the Company may, upon giving prompt written notice of such action to the Holders, delay any other registered offering pursuant to subsection 2.1.4.

3.5Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly upon request by a Holder furnish such Holder with true and complete copies of all such filings; provided that any documents publicly filed or furnished with the Commission pursuant to EDGAR shall be deemed to have been furnished or delivered to the Holders pursuant to this Section 3.5.

3.6Other Obligations. In connection with a sale or transfer of Registrable Securities exempt from Section 5 of the Securities Act or through any broker-dealer transactions described in the plan of distribution set forth within the Prospectus and pursuant to the Registration Statement of which such Prospectus forms a part, the Company shall, subject to the receipt of any customary documentation reasonably required from the applicable Holders and/or their broker(s) in connection therewith, (a) promptly instruct its transfer agent to remove any restrictive legends applicable to the Registrable Securities being sold or transferred and (b) to the extent required by the transfer agent, cause its legal counsel to deliver the necessary legal opinions, if any, to the transfer agent in connection with the instruction under subclause (a). In addition, the Company shall cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with the aforementioned sales or transfers; provided, however, that the Company shall have no obligation to participate in any “road shows” or assist with the preparation of any offering memoranda or related documentation with respect to any sale or transfer of Registrable Securities in any transaction that does not constitute an Underwritten Offering.

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Article IV

Indemnification and Contribution

4.1Indemnification.

4.1.1The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and each person who controls such Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and reasonable and documented out of pocket expenses (including reasonable and documented attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in (or not contained in, in the case of an omission) any information or affidavit furnished in writing to the Company by or on behalf of such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.

4.1.2In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish (or cause to be furnished) to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus (the “Holder Information”) and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and reasonable and documented out of pocket expenses (including, without limitation, reasonable and documented attorneys’ fees) resulting from any untrue or alleged untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in (or not contained in, in the case of an omission) any information or affidavit so furnished in writing by or on behalf of such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders of Registrable Securities, and the liability of each such Holder shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such Registration Statement. The Holders shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with respect to indemnification of the Company.

4.1.3Any person entitled to indemnification herein shall (a) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (b) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld, conditioned or delayed). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one (1) counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

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4.1.4The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of securities. The Company and each Holder participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.

4.1.5If the indemnification provided under this Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.

Article V

Miscellaneous

5.1Notices. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii) delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery or electronic mail. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed and, in the case of notices delivered by courier service, hand delivery, or electronic mail, at such time as it is delivered to the addressee (with the delivery receipt of the intended participant or the affidavit of messenger) or at such time as delivery is refused by the addressee upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: 26180 Curtiss Wright Pkwy, Cleveland, OH 44143, Attention: Kenneth C. Ricci; and, if to any Holder, at such Holder’s address or contact information as set forth in the Company’s books and records. Any party may change its address for notice at any time and from time to time by written notice to the other parties hereto, and such change of address shall become effective 30 days after delivery of such notice as provided in this Section 5.1.

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5.2Assignment; No Third Party Beneficiaries.

5.2.1This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.

5.2.2Following the expiration of the Lock-up Period, the rights granted to a Holder by the Company hereunder may be transferred or assigned (but only with all related obligations) by a Holder only to a Permitted Transferee of such Holder; provided, that (i) such transfer or assignment of Registrable Securities is effected in accordance with applicable securities laws (subject to reasonable verification by the Company), (ii) the Company is, within a reasonable time after such transfer, furnished with written notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred and (iii) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions of this Agreement. Notwithstanding the foregoing, prior to the expiration of the Lock-up Period, the rights granted to a Holder by the Company hereunder may be transferred or assigned (but only with all related obligations) by such Holder subject to the Lock-up Period in connection with any Transfer of Registrable Securities made in accordance with the terms of the Stockholders’ Agreement, so long as the conditions set forth in the proviso to the immediately preceding sentence are satisfied.

5.2.3This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders, which shall include Permitted Transferees.

5.2.4Other than as expressly set forth herein, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing in this Agreement expressed or implied shall give or be construed to give to any person or entity, other than the parties hereto and such successors and permitted assigns, any legal or equitable rights under this Agreement.

5.2.5No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (a) written notice of such assignment as provided in Section 5.1 hereof and (b) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.2 shall be null and void.

5.3Execution of Agreement. This Agreement 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. Delivery by electronic transmission to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence. Facsimile or electronic mail transmission of counterpart signatures to this Agreement shall be acceptable and binding.

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5.4 Governing Law; Venue.

5.4.1This Agreement, and all Actions based upon, arising out of, or related to this Agreement 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.

5.5Any Action based upon, arising out of or related to this Agreement must be brought in the federal and state courts located in the Borough of Manhattan, or, if it has or can acquire jurisdiction, in the District Court of the Southern District of New York and of any Federal District Court sitting in New York, New York (collectively, the “Designated Courts”), and each of the parties irrevocably (i) submits to the exclusive jurisdiction of the Designated Courts in any such proceeding or Action, (ii) waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, (iii) agrees that all claims in respect of the proceeding or Action shall be heard and determined only in such Designated Court, and (iv) agrees not to bring any proceeding or Action arising out of or relating to this Agreement in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence Legal Proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any Action, suit or proceeding brought pursuant to this subsection 5.4.2.

5.6Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY, UNCONDITIONALLY AND VOLUNTARILY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.

5.7Amendments and Waivers. Only upon the written consent of the Company and the Holders of at least a majority in interest of the total Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity as a holder of the shares of capital stock of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No provision of this Agreement may be waived unless such waiver is in writing and signed by the party or parties against whom such waiver is to be effective. No course of dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by such party. The rights and remedies of the parties hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have hereunder.

5.8Other Registration Rights. The Company represents and warrants that no person, other than a Holder of Registrable Securities, a PIPE Investor and a holder of public warrants that were issued as part of the units in Horizon’s initial public offering, which warrants were assumed by the Company in connection with the Closing, has any right to require the Company to register any securities of the Company for sale or to include such securities of the Company in any Registration Statement filed by the Company for the sale of securities for its own account or for the account of any other person.

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5.9 Opt-Out Requests. Each Holder shall have the right, at any time and from time to time (including after receiving information regarding any potential public offering), to elect to not receive any notice that the Company or any other Holders otherwise are required to deliver pursuant to this Agreement by delivering to the Company a written statement signed by such Holder that it does not want to receive any notices hereunder (an “Opt-Out Request”); in which case and notwithstanding anything to the contrary in this Agreement the Company and other Holders shall not be required to, and shall not, deliver any notice or other information required to be provided to Holders hereunder to the extent that the Company or such other Holders reasonably expect would result in a Holder acquiring material non-public information within the meaning of Regulation FD promulgated under the Exchange Act. An Opt-Out Request may state a date on which it expires or, if no such date is specified, shall remain in effect indefinitely. A Holder who previously has given the Company an Opt-Out Request may revoke such request at any time, and there shall be no limit on the ability of a Holder to issue and revoke subsequent Opt-Out Requests; provided that each Holder shall use commercially reasonable efforts to minimize the administrative burden on the Company arising in connection with any such Opt-Out Requests.

5.10Rule 144. With a view to making available to the Holders the benefits of Rule 144 promulgated under the Securities Act, the Company covenants that it will (a) make available information necessary to comply with Rule 144, if available with respect to resales of the Registrable Securities under the Securities Act, at all times, and (b) take such further action as the Holders may reasonably request, all to the extent required from time to time to enable such Holders to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (if available with respect to resales of the Registrable Securities), as such rule may be amended from time to time.

5.11Term. This Agreement shall terminate upon the earlier of (i) the fifth (5th) anniversary of the date hereof or (ii) with respect to any Holder, on the date that such Holder no longer holds any Registrable Securities. The provisions of Section 3.5 and Article IV shall survive any termination.

5.12Holder Information. Each Holder agrees, if requested in writing, to represent to the Company the total number of Registrable Securities held by such Holder in order for the Company to make determinations hereunder, including, without limitation, for purposes of Section 5.7 hereof.

5.13Severability. It is the desire and intent of the parties that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

5.14Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Company shall be entitled to an injunction or injunctions to prevent breaches of this Agreement by a Holder and to enforce specifically the terms and provisions hereof.

5.15Entire Agreement; Restatement. This Agreement constitutes the full and entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter. Upon the Closing, the Original Agreement shall no longer be of any force or effect. Upon any amendment or restatement, this Agreement shall no longer be of any force or effect.

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5.16Distributions. In the event that any Holder distributes, or has distributed, any of its Registrable Securities to its direct and/or indirect equity holders, such distributees shall be treated as the applicable Holder hereunder; provided that only the holders of a majority-in-interest of the Registrable Securities held by all such distributees, as determined in good faith by the Company, shall be entitled to take any action under this Agreement that such Holder is entitled to take, provided, further, that such distributees, taken as a whole, shall not be entitled to rights in excess of those conferred to the applicable Holder, as if it remained a single entity party to this Agreement.

5.17Adjustments. If, and as often as, there are any changes in the Registrable Securities by way of stock split, stock dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or sale, or by any other means, appropriate adjustment shall be made in the provisions of this Agreement, as may be required, so that the rights, privileges, duties and obligations hereunder shall continue with respect to the Registrable Securities as so changed.

5.18Further Assurances. From time to time, at another party’s request and without further consideration (but at the requesting party’s reasonable cost and expense), each party shall execute and deliver such additional documents and take all such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written.

COMPANY:

FLEXJET, INC.

By:

Name:

Title:

FLEXJET SUB, LLC

By:

Name:

Title:

HOLDERS:

DIRECTIONAL CAPITAL LLC

By:

Name:

Title:

ELDRIDGE INDUSTRIES, LLC

By:

Name:

Title:

HORIZON II SPONSOR, LLC

By:

Name:

Title:

[Signature Page to Amended and Restated Registration Rights Agreement] 

EPIC HOLDERS:

[●]

By:

Name:

Title:

[●]

By:

Name:

Title:

[Signature Page to Amended and Restated Registration Rights Agreement] 

EX-10.8

Exhibit 10.8

SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

FLEXJET, INC.

1. The original certificate of incorporation of Flexjet, Inc. (the “Corporation”) was filed with the Secretary of State of the State of Delaware on October 6, 2022 (the “Original Certificate of Incorporation”). The name under which the Original Certificate of Incorporation was filed is “Flexjet, Inc.”

2. An amended and restated certificate of incorporation which both restated and amended the provisions of the Original Certificate of Incorporation, was duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”), and such amended and restated certificate of incorporation was filed with the Secretary of State of the State of Delaware on [●] (the “First A&R Certificate of Incorporation”). The name under which the First A&R Certificate of Incorporation was filed is “Flexjet, Inc.”

3. This Second Amended and Restated Certificate of Incorporation (this “Second A&R Certificate of Incorporation”) was duly adopted by the Board of Directors of the Corporation and the stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the DGCL.

4. This Second A&R Certificate of Incorporation shall become effective on the date of filing with the Secretary of State of the State of Delaware.

5. At the effectiveness of this Second A&R Certificate of Incorporation, no shares of Class B Common Stock of the Corporation, which shares were previously issued and outstanding under the First A&R Certificate of Incorporation, remain issued and outstanding. All shares of Class A Common Stock issued and outstanding prior to the effectiveness of this Second A&R Certificate of Incorporation shall be shares of Common Stock for all purposes of this Second A&R Certificate of Incorporation.

6. This Second A&R Certificate of Incorporation hereby amends and restates the provisions of the First A&R Certificate of Incorporation in its entirety as follows:

Article I
NAME

The name of the Corporation is Flexjet, Inc.

Article II
REGISTERED OFFICE AND AGENT

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, State of Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

Article III
PURPOSE AND DURATION

The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the DGCL. The Corporation is to have a perpetual existence.

Article IV

CAPITAL STOCK

The total number of shares of all classes of stock that the Corporation shall have authority to issue is [2,100,000,000], which shall be divided into two classes as follows:

[2,000,000,000] shares of common stock, par value $[0.0001] per share (“Common Stock”); and

[100,000,000] shares of preferred stock, par value $[0.0001] per share (“Preferred Stock”).

Section 1.Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of any of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the outstanding stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL or any successor provision thereof, and no vote of the holders of any of the Common Stock or Preferred Stock voting separately as a class shall be required therefor.

Section 2.Shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors of the Corporation (the “Board”) is hereby authorized, to the extent permitted by applicable law, to provide from time to time by resolution or resolutions for the creation and issuance, out of the authorized and unissued shares of Preferred Stock, of one or more series of Preferred Stock by filing a certificate (a “Certificate of Designation”) pursuant to the DGCL, setting forth such resolution and, with respect to each such series, establishing the designation of such series and the number of shares to be included in such series and fixing the voting powers (full or limited, or no voting power), preferences and relative, participating, optional or other special rights, and the qualifications, limitations and restrictions thereof, of the shares of each such series, including without limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, as shall be stated and expressed in such resolutions, all to the fullest extent now or hereafter permitted by the DGCL. Without limiting the generality of the foregoing, the resolution or resolutions providing for the establishment of any series of Preferred Stock may, to the extent permitted by law, provide that such series shall be superior to, rank equally with or be junior to the Preferred Stock of any other series. The powers, preferences and relative, participating, optional and other special rights, and the qualifications, limitations or restrictions thereof, of each series of Preferred Stock may be different from those of any and all other series at any time outstanding. Except as otherwise expressly provided in this Second A&R Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock), no vote of the holders of shares of Preferred Stock or Common Stock shall be a prerequisite to the issuance of any shares of any series of the Preferred Stock so authorized in accordance with this Second A&R Certificate of Incorporation. Except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Second A&R Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Second A&R Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) or pursuant to the DGCL. Unless otherwise provided in the Certificate of Designation establishing a series of Preferred Stock, the Board may, by resolution or resolutions, increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of such series and, if the number of shares of such series shall be so decreased, the shares constituting such decrease shall resume the status that they had prior to the adoption of the resolution originally fixing the number of shares of such series.

Section 3.Each holder of record of Common Stock, as such, shall have one vote for each share of Common Stock which is outstanding in his, her or its name on the books of the Corporation on all matters on which stockholders are entitled to vote generally.  Except as otherwise required by law, holders of any series of Preferred Stock shall be entitled to only such voting rights, if any, as shall expressly be granted thereto by this Second A&R Certificate of Incorporation (including any Certificate of Designation relating to such series of Preferred Stock).

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Article V
BOARD OF DIRECTORS

For the management of the business and for the conduct of the affairs of the Corporation it is further provided that:

Section 1.Except as otherwise provided in this Second A&R Certificate of Incorporation and the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board. Except as otherwise provided in this Second A&R Certificate of Incorporation, the number of directors which shall constitute the whole Board shall initially be seven and, thereafter, shall be fixed exclusively by one or more resolutions adopted from time to time by the Board.

Section 2.The directors (other than those directors elected by the holders of any series of Preferred Stock, voting separately as a series or together with one or more other such series, as the case may be) shall be divided into three classes, designated Class I, Class II and Class III. Class I directors shall initially serve until the first annual meeting of stockholders following the effectiveness of this Second A&R Certificate of Incorporation (the “Classification Effective Time”); Class II directors shall initially serve until the second annual meeting of stockholders following the Classification Effective Time; and Class III directors shall initially serve until the third annual meeting of stockholders following the Classification Effective Time. Commencing with the first annual meeting of stockholders following the Classification Effective Time, directors of each class the term of which shall then expire shall be elected to hold office for a three-year term and until the election and qualification of their respective successors in office. The Board is authorized to assign members of the Board already in office to Class I, Class II or Class III, with such assignment becoming effective as of the Classification Effective Time. If the number of such directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected or appointed to fill a newly created directorship resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in the number of directors remove or shorten the term of any incumbent director. Any director shall hold office until the annual meeting at which his or her term expires and until his or her successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal from office.

Section 3.Subject to the special rights of the holders of one or more series of Preferred Stock to elect directors, any director may be removed from office at any time, but only for cause (for so long as the Board remains classified pursuant to Section 2), and only by the affirmative vote of the holders of at least 66 2/3% of the voting power of the outstanding shares of stock of the Corporation entitled to vote on the election of such director, voting together as a single class.

Section 4.Except as otherwise expressly required by law, and subject to the special rights of the holders of one or more series of Preferred Stock to elect directors, any vacancies on the Board resulting from death, resignation, disqualification, retirement, removal or other causes and any newly created directorships resulting from any increase in the number of directors shall be filled only by the affirmative vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director, and shall not be filled by the stockholders. Any director appointed in accordance with the preceding sentence shall hold office for a term that shall coincide with the remaining term of the class to which the director shall have been appointed and until such director’s successor shall have been elected and qualified or until his or her earlier death, resignation, disqualification, retirement or removal.

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Section 5.      During any period when the holders of any series of Preferred Stock have the right to elect additional directors, then upon commencement and for the duration of the period during which such right continues: (i) the then otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such series of Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his or her earlier death, resignation, retirement, disqualification or removal. Except as otherwise provided by this Second A&R Certificate of Incorporation (including any Certificate of Designation establishing any series of Preferred Stock), whenever the holders of any series of Preferred Stock having the right to elect additional directors are divested of such right pursuant to this Second A&R Certificate of Incorporation (including any such Certificate of Designation), the terms of office of all such additional directors elected by the holders of such series, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate and each such director shall cease to be qualified as (and shall cease to be) a director, and the total authorized number of directors of the Corporation shall be reduced accordingly.

Section 6.The directors of the Corporation need not be elected by written ballot unless the bylaws of the Corporation (the “Bylaws”) so provide.

Section 7.Except as may otherwise be set forth in the resolutions of the Board providing for the issuance of one or more series of Preferred Stock, and then only with respect to such series of Preferred Stock, cumulative voting in the election of directors is specifically denied.

Article VI
STOCKHOLDERS

Section 1.Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of the stockholders of the Corporation and may not be taken by consent of the stockholders in lieu of a meeting; provided, however, that (i) for so long as the Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders, as such terms are defined in the Stockholders Agreement, beneficially own in the aggregate more than 50% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting and shall be delivered to the Corporation, in accordance with the DGCL, this Second A&R Certificate of Incorporation and the Bylaws; and (ii) any action required or permitted to be taken by the holders of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable Certificate of Designation relating to such series of Preferred Stock.

Section 2.Subject to the special rights of the holders of one or more series of Preferred Stock, special meetings of the stockholders of the Corporation may be called, for any purpose or purposes, at any time by the chairperson of the Board or a resolution adopted by the affirmative vote of the majority of the then-serving members of the Board.

Section 3.Advance notice of stockholder nominations for the election of directors and of other business proposed to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.

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Article VII
LIABILITY AND INDEMNIFICATION

Section 1.To the fullest extent permitted by the DGCL, as the same exists or as may hereafter be amended, 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. If the DGCL is hereafter amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so amended, automatically and without further action, upon the date of such amendment.

Section 2.The Corporation, to the fullest extent permitted by law, may indemnify and advance expenses to any Person made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or any predecessor of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

Section 3.Neither any amendment nor repeal of this Article VII, nor the adoption by amendment of this Second A&R Certificate of Incorporation of any provision inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring, or any action or proceeding accruing or arising (or that, but for this Article VII, would accrue or arise) prior to such amendment or repeal or adoption of an inconsistent provision.

Article VIII
EXCLUSIVE FORUM

Section 1.Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (the “Chancery Court”) shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any current or former director, officer or other employee, agent or stockholder of the Corporation to the Corporation or to the Corporation’s stockholders, (iii) any action, suit or proceeding asserting a claim against the Corporation, its current or former directors, officers, or employees, agents or stockholders arising pursuant to any provision of the DGCL or this Second A&R Certificate of Incorporation or the Bylaws, or (iv) any action, suit or proceeding asserting a claim against the Corporation, its current or former directors, officers, or employees, agents or stockholders governed by the internal affairs doctrine. If any action the subject matter of which is within the scope of this Section 1 of this Article VIII is filed in a court other than the Chancery Court (a “Foreign Action”) by any stockholder (including any beneficial owner), to the fullest extent permitted by law, such stockholder shall be deemed to have consented to: (a) the personal jurisdiction of the Chancery Court in connection with any action brought in any such court to enforce this Section 1 of this Article VIII; and (b) having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.

Section 2.Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by the DGCL, this Second A&R Certificate of Incorporation or the Bylaws, be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act.

Notwithstanding the foregoing, the foregoing provisions of this Article VIII shall not apply to claims seeking to enforce any liability or duty created by the Exchange Act, or any other claim for which the U.S. federal courts have exclusive jurisdiction.

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To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to the provisions of this Article VIII.

Article IX
CERTAIN STOCKHOLDER RELATIONSHIPS

Section 1.In recognition and anticipation that (i) certain directors, managers, principals, officers, members, partners, employees and/or other representatives of the Directional Parties, Eldridge and Sponsor (each such term, as defined in the Stockholders Agreement) may serve as directors, officers or agents of the Corporation, (ii) the Directional Parties, Eldridge, Sponsor and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, and (iii) members of the Board who are not employees of the Corporation or a majority owned subsidiary thereof (“Non-Employee Directors”) and their respective Affiliates may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the provisions of this Article IX are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Directional Parties, Eldridge, Sponsor, the Non-Employee Directors or their respective Affiliates and the powers, rights, duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith.

Section 2.None of (i) the Directional Parties, Eldridge and Sponsor (as such terms are defined in the Stockholders Agreement) and their respective Affiliates or (ii) the Non-Employee Directors or their Affiliates (the Persons identified in (i) and (ii) above being referred to, collectively, as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent permitted by law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by law, the Corporation, on behalf of itself and its subsidiaries, hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Corporation or any of its Affiliates, except as provided in Section 3 of this Article IX. Subject to Section 3 of this Article IX, in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, offers or directs such corporate opportunity to another Person, or does not communicate information regarding such corporate opportunity to the Corporation or any Affiliate of the Corporation.

Section 3.The Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director if such opportunity is expressly offered to such Person solely in his or her capacity as a director of the Corporation, and the provisions of Section 2 of this Article IX shall not apply to any such corporate opportunity.

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Section 4.      In addition to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall be deemed not to be a potential corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able, nor contractually permitted, to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical advantage to the Corporation or (iii) is one in which the Corporation has no interest or reasonable expectancy.

Section 5.Solely for purposes of this Article IX, “Affiliate” shall mean (a) in respect of the Directional Parties, Eldridge or Sponsor, any Person that, directly or indirectly, is controlled by any such party, controls any such party or is under common control with any such party and shall include (i) any principal, member, director, manager, partner, stockholder, officer, employee or other representative of any of the foregoing (other than the Corporation and any entity that is controlled by the Corporation) and (ii) any funds or vehicles advised by Affiliates of any such party, (b) in respect of a Non-Employee Director, any Person that, directly or indirectly, is controlled by such Non-Employee Director (other than the Corporation and any entity that is controlled by the Corporation) and (c) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation.

Section 6.To the fullest extent permitted by law, any Person purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article IX.

Article X
AMENDMENT OF THE CERTIFICATE OF INCORPORATION AND BYLAWS

Section 1.The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Second A&R Certificate of Incorporation, in the manner now or hereafter prescribed by this Second A&R Certificate of Incorporation and the DGCL, and all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons herein are granted by and pursuant to this Second A&R Certificate of Incorporation in its current form or as hereafter amended are granted subject to the right reserved in this Article X. Notwithstanding any other provisions of this Second A&R Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of capital stock of the Corporation or any particular class or series thereof required by law or by this Second A&R Certificate of Incorporation (including any Certificate of Designation in respect of one or more series of Preferred Stock), from and after the first date on which the Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders cease to beneficially own in the aggregate more than 50% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, the affirmative vote of the holders of at least 66 2/3% of the voting power of the outstanding shares of stock of the Corporation entitled to vote at an election of directors, voting together as a single class, in each case, shall be required to alter, amend or repeal, or to adopt any provision inconsistent with, Articles V, VI, VII, VIII, IX, this Article X, or Article XI of this Second A&R Certificate of Incorporation and this Article X .

Section 2.The Board is expressly authorized to make, repeal, alter, amend and rescind, in whole or in part, the Bylaws without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or this Second A&R Certificate of Incorporation. The stockholders may also make, repeal, alter, amend or rescind, in whole or in part, the Bylaws; provided, however, that notwithstanding any other provisions of this Second A&R Certificate of Incorporation, the Bylaws or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of capital stock of the Corporation or any particular class or series thereof required by the DGCL, this Second A&R Certificate of Incorporation (including any Certificate of Designation in respect of one or more series of Preferred Stock) or the Bylaws, the affirmative vote of the holders of at least 66 2/3% of the voting power of the outstanding shares of stock entitled to vote at an election of directors, voting together as a single class, shall be required in order for the stockholders of the Corporation to alter, amend or repeal, in whole or in part, any provision of the Bylaws or to adopt any provision inconsistent therewith.

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Article XI
DGCL SECTION 203 and business combinations

The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.

Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below), at any point in time at which time the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested stockholder (as defined below) for a period of three (3) years following the time that such stockholder became an interested stockholder, unless:

1. prior to such time, the Board approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder, or

2. upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (a) by persons who are directors and also officers and (b) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or

3. at or subsequent to such time, the business combination is approved by the Board and authorized or approved at an annual or special meeting of stockholders (or by written consent, if action by written consent is not then prohibited by this Second A&R Certificate of Incorporation) by the affirmative vote of at least 66 2/3% of the then-outstanding voting stock of the Corporation that is not owned by the interested stockholder.

The restrictions contained in this Article XI shall not apply if:

(a) a stockholder becomes an interested stockholder inadvertently and (i) as soon as practicable divests itself of ownership of sufficient shares so that the stockholder ceases to be an interested stockholder; and (ii) would not, at any time within the three-year period immediately prior to a business combination between the Corporation and such stockholder, have been an interested stockholder but for the inadvertent acquisition of ownership; or

(b) the business combination is proposed prior to the consummation or abandonment of and subsequent to the earlier of the public announcement or the notice required hereunder of a proposed transaction which (i) constitutes one of the transactions described in the next sentence; (ii) is with or by a person who either was not an interested stockholder during the previous three years or who became an interested stockholder with the approval of the Board; and (iii) is approved or not opposed by a majority of the directors then in office (but not less than one) who were directors prior to any person becoming an interested stockholder during the previous three years or were recommended for election or elected to succeed such directors by a majority of such directors. The proposed transactions referred to in the preceding sentence are limited to (x) a merger or consolidation of the Corporation (except for a merger in respect of which, pursuant to Section 251(f) of the DGCL, no vote of the stockholders of the Corporation is required); (y) a sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation (other than to any direct or indirect wholly-owned subsidiary or to the Corporation) having an aggregate market value equal to fifty percent (50%) or more of either that aggregate market value of all of the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation; or (z) a proposed tender or exchange offer for fifty percent (50%) or more of the outstanding voting stock of the Corporation. The Corporation shall give not less than 20 days’ notice to all interested stockholders prior to the consummation of any of the transactions described in clause (x) or (y) of the foregoing sentence.

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For purposes of this Article XI only, references to:

1. “affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.

2. “associate,” when used to indicate a relationship with any person, means: (a) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (b) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (c) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.

3. “business combination,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:

a. any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (1) with the interested stockholder or (2) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation this Article XI is not applicable to the surviving entity;

b. any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation, which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the then outstanding stock of the Corporation;

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c. any transaction that results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (1) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary, which securities were outstanding prior to the time that the interested stockholder became such; (2) pursuant to a merger under Section 251(g) of the DGCL; (3) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary, which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (4) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (5) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (3) through (5) of this subsection (c) shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);

d. any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary that is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption or other transfer of any shares of stock not caused, directly or indirectly, by the interested stockholder; or

e. any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges or other financial benefits (other than those expressly permitted in subsections (a) through (d) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.

4. “control,” including the terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise.  A person who is the owner of 20% or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary.  Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article XI, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.

5.

“Direct Transferee of the Directional Parties” means any person that acquires (other than in a registered public offering) directly from the Directional Parties or any of its successors or any “group”, or any member of any such group, of which such persons are a party under Rule 13d-5 of the Exchange Act shares of stock of the Corporation that result in such person’s beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation.

6.

“Indirect Transferee of the Directional Parties” means any person that acquires (other than in a registered public offering) directly from any Direct Transferee of the Directional Parties or any other Indirect Transferee of the Directional Parties shares of stock of the Corporation that result in such person’s beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation.

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7. “interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (a) is the owner of 15% or more of the then outstanding voting stock of the Corporation, or (b) is an affiliate or associate of the Corporation and was the owner of 15% or more of the then outstanding voting stock of the Corporation at any time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the affiliates and associates of such person; but “interested stockholder” shall not include (x) the Directional Parties (as defined in the Stockholders Agreement), any Direct Transferee of the Directional Parties, and any Indirect Transferee of the Directional Parties, or any of their respective affiliates or successors or any “group”, or any member of any such group, to which such persons are a party under Rule 13d-5 of the Exchange Act, or (y) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation, provided that such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person.  For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below, but shall not include any other unissued stock of the Corporation that may be issuable pursuant to any other agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.  

8. “majority-owned subsidiary” of the Corporation (or specified person) means another person of which the Corporation (or specified person), directly or indirectly with or through one or more majority-owned subsidiaries, is the general partner or managing member of such other person or owns equity securities with a majority of the votes of all equity securities generally entitled to vote in the election of directors or other governing body of such other person.

9. “owner,” including the terms “own,” “owned,” and “ownership,” when used with respect to any stock, means a person that individually or with or through any of its affiliates or associates:

a. beneficially owns such stock, directly or indirectly, within the meaning of Rule 13d-3 under the Exchange Act; or

b. has (1) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (2) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or more persons; or

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c. has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (2) of subsection (b) above of this definition), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock; provided, that, for the purposes of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of this definition of “owned” but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

10. “person” means any individual, corporation, partnership, unincorporated association or other entity.

11. “stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.

12. “voting stock” means stock of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity.  Every reference in this Article XI to a percentage of voting stock shall refer to such percentage of the votes of such voting stock.

Article XII
GENERAL

If any provision or provisions of this Second A&R Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Second A&R Certificate of Incorporation (including, without limitation, each portion of any section or paragraph of this Second A&R Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by the DGCL, this Second A&R Certificate of Incorporation or the Bylaws, in any way be affected or impaired thereby.

Article XIII
DEFINITIONS

As used in this Second A&R Certificate of Incorporation, except as otherwise expressly provided herein and unless the context requires otherwise, the following terms shall have the following meanings:

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Person” means any individual, general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever nature, and shall include any successor (by merger, consolidation, division or otherwise) of such entity.

“Securities Act” means the Securities Act of 1933, as amended.

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Article XIV
RESTRICTIONS ON OWNERSHIP
 

At no time shall more than 25% of the voting interest of the Corporation be owned or controlled by persons who are not “citizens of the United States” (as such term is defined in Title 49, United States Code, Section 40102 and administrative interpretations thereof issued by the Department of Transportation or its predecessor or successors, or as the same may be from time to time amended) (“Non-Citizens”). In the event that Non-Citizens shall own (beneficially or of record) or have voting control over any shares of capital stock of the Corporation, the voting rights of certain Non-Citizens shall be subject to automatic suspension to the extent required to ensure that the Corporation is in compliance with applicable provisions of law and regulations relating to ownership or control of a U.S. air carrier. The Bylaws shall contain provisions to implement this Article XIV, including, without limitation, provisions restricting or prohibiting transfer of shares of voting stock to Non-Citizens and provisions restricting or removing voting rights as to shares of voting stock owned or controlled by certain Non-Citizens. Any determination as to ownership, control or citizenship made by the Board shall be conclusive and binding as between the Corporation and any stockholder for purposes of this Article XIV.

* * * *

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IN WITNESS WHEREOF, [●] has caused this Second A&R Certificate of Incorporation to be executed by its duly authorized officer on this            day of               , 202[●].

[●]

By:

Name:

Title:

EX-10.9

Exhibit 10.9

BYLAWS OF

FLEXJET, INC.

(A DELAWARE CORPORATION)

Table of Contents

			Page
Article I - Corporate Offices			1
	1.1	Registered Office	1
	1.2	Other Offices	1
Article II - Meetings of Stockholders			1
	2.1	Place of Meetings	1
	2.2	Annual Meeting	1
	2.3	Special Meeting	1
	2.4	Advance Notice Procedures for Business Brought before a Meeting	2
	2.5	Advance Notice Procedures for Nominations of Directors	6
	2.6	Notice of Stockholders’ Meetings	10
	2.7	Manner of Giving Notice; Affidavit of Notice	11
	2.8	Quorum	11
	2.9	Adjourned Meeting; Notice	11
	2.10	Conduct of Business	11
	2.11	Voting	12
	2.12	Record Date for Stockholder Meetings and Other Purposes	12
	2.13	Proxies	13
	2.14	List of Stockholders Entitled to Vote	13
	2.15	Inspectors of Election	13
	2.16	Virtual Meeting	14
	2.17	Delivery to the Corporation	14
Article III – Directors			15
	3.1	Powers	15
	3.2	Number of Directors	15
	3.3	Election, Qualification and Term of Office of Directors	15
	3.4	Resignation and Vacancies	15
	3.5	Place of Meetings; Meetings by Telephone	15
	3.6	Regular Meetings	15
	3.7	Special Meetings; Notice	16
	3.8	Quorum	16
	3.9	Action by Unanimous Consent Without a Meeting	16
	3.10	Fees and Compensation of Directors	16
	3.11	Removal	17
	3.12	Chairperson, Vice Chairperson	17
Article IV - Committees			17
	4.1	Committees of Directors	17
	4.2	Committee Minutes	17
	4.3	Meetings and Actions of Committees	17
Article V - Officers			18
	5.1	Officers	18
	5.2	Appointment of Officers	18
	5.3	Subordinate Officers	18
	5.4	Removal and Resignation of Officers	19
	5.5	Vacancies in Offices	19

(i)

Table of Contents

(continued)

	5.6	Representation of Securities of Other Entities	19
	5.7	Tenure, Authority and Duties of Officers	19
Article VI - Records			19
Article VII - General Matters			20
	7.1	Execution of Corporate Contracts and Instruments	20
	7.2	Stock Certificates	20
	7.3	Lost Certificates	20
	7.4	Shares Without Certificates	20
	7.5	Dividends	21
	7.6	Fiscal Year	21
	7.7	Seal	21
	7.8	Transfer of Stock	21
	7.9	Stock Transfer Agreements	21
	7.10	Registered Stockholders	21
	7.11	Waiver of Notice	21
Article VIII - Notice by Electronic Transmission			22
	8.1	Notice by Electronic Transmission	22
	8.2	Definition of Electronic Transmission	22
Article IX - Indemnification			23
	9.1	Indemnification of Directors and Officers	23
	9.2	Indemnification of Others	24
	9.3	Prepayment of Expenses	24
	9.4	Determination; Claim	24
	9.5	Non-Exclusivity of Rights	24
	9.6	Insurance	24
	9.7	Other Indemnification	25
	9.8	Continuation of Indemnification	25
	9.9	Amendment or Repeal; Interpretation	25
Article X - Definitions			25
Article XI – Limitations of Ownership by Non-Citizens			26
Article XII – Lock-Up			28

(ii)

Bylaws of

Flexjet, Inc.

Article I - Corporate Offices

1.1            Registered Office.

The address of the registered office of Flexjet, Inc. (the “Corporation”) in the State of Delaware, and the name of its registered agent at such address, shall be as set forth in the Corporation’s certificate of incorporation, as the same may be amended and/or restated from time to time (the “Certificate of Incorporation”).

1.2            Other Offices.

The Corporation may have additional offices at any place or places, within or outside the State of Delaware, as the Corporation’s board of directors (the “Board”) may from time to time establish or as the business of the Corporation may require.

Article II - Meetings of Stockholders

2.1            Place of Meetings.

Meetings of stockholders shall be held at such place, if any, within or outside the State of Delaware, designated by the Board. The Board may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”). In the absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive offices.

2.2            Annual Meeting.

The Board shall designate the date and time of the annual meeting. At the annual meeting, directors shall be elected and other proper business properly brought before the meeting in accordance with Section 2.4 may be transacted. The Board may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board.

2.3            Special Meeting.

Special meetings of the stockholders may be called only by such Persons and only in such manner as set forth in the Certificate of Incorporation. The Board may postpone, reschedule or cancel any special meeting of stockholders previously scheduled by the Board.

No business may be transacted at any special meeting of stockholders other than the business specified in the notice of such meeting.

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2.4            Advance Notice Procedures for Business Brought before a Meeting.

(i)            At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a) specified in a notice of meeting (or any supplement thereto) given by or at the direction of the Board, (b) if not specified in a notice of meeting, otherwise properly brought before the meeting by or at the direction of the Board, or (c) otherwise properly brought before the meeting by a stockholder present in person who (1) was a stockholder of record of the Corporation both at the time of giving the notice provided for in this Section 2.4 and at the time of the meeting, (2) is entitled to vote at the meeting and (3) has complied with this Section 2.4. The foregoing clause (c) shall be the exclusive means for a stockholder to propose business to be brought before an annual meeting of the stockholders. The only matters that may be brought before a special meeting are the matters specified in the Corporation’s notice of meeting given by or at the direction of the Board pursuant to the Certificate of Incorporation and Section 2.3 of these bylaws. For purposes of this Section 2.4 and Section 2.5 of these bylaws, “present in person” shall mean that the stockholder proposing that the business be brought before the annual meeting of the Corporation, or, if the proposing stockholder is not an individual, a qualified representative of such proposing stockholder, appear at such annual meeting, and a “qualified representative” of such proposing stockholder shall be, if such proposing stockholder is (x) a general or limited partnership, any general partner or Person who functions as a general partner of the general or limited partnership or who controls the general or limited partnership, (y) a corporation or a limited liability company, any officer or Person who functions as an officer of the corporation or limited liability company or any officer, director, general partner or Person who functions as an officer, director or general partner of any entity ultimately in control of the corporation or limited liability company or (z) a trust, any trustee of such trust. This Section 2.4 shall apply to any business that may be brought before an annual meeting of stockholders other than nominations for election to the Board at an annual meeting, which shall be governed by Section 2.5 of these bylaws. Stockholders seeking to nominate Persons for election to the Board must comply with Section 2.5 of these bylaws, and this Section 2.4 shall not be applicable to nominations for election to the Board except as expressly provided in Section 2.5 of these bylaws.

(ii)            Without qualification, for business (other than (A) nominations of persons for election to the Board, which must be made in compliance with and are governed exclusively by Section 2.5) to be properly brought before an annual meeting by a stockholder, the stockholder must (a) provide Timely Notice (as defined below) thereof in writing and in proper form to the secretary of the Corporation and (b) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.4. To be timely, a stockholder’s notice must be delivered to, or mailed and received at, the principal executive offices of the Corporation not later than the Close of Business (as defined below) on the ninetieth (90^th) day and not earlier than the Close of Business on the one hundred twentieth day (120^th) day, in each case, prior to the one-year anniversary of the preceding year’s annual meeting (which date shall, for purposes of the Corporation’s annual meeting of stockholders in the year of the closing of the business combination contemplated by that certain Business Combination Agreement dated as of October [●], 2022 by and between Horizon Acquisition Corporation II, OTH Merger Sub 1, LLC, Flexjet, Inc., Flexjet Sub, LLC and Epic Aero, Inc. (the “Business Combination”), be deemed to have occurred on [●], 202[●]); provided, however, that if the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered, or mailed and received, not later than the close of business on the later of (i) the Close of Business on the ninetieth (90^th) day prior to such annual meeting or (ii) the Close of Business on the tenth (10^th) day following the day on which public disclosure of the date of such annual meeting was first made, whichever date is later (such notice within such time periods, “Timely Notice”). In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of Timely Notice as described above. “Close of Business” shall mean 5:00 p.m. Eastern Time on any calendar day, whether or not the day is a business day.

(iii)            To be in proper form for purposes of this Section 2.4, a stockholder’s notice to the secretary shall set forth:

(a)            As to each Proposing Person (as defined below), (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Corporation’s books and records); and (B) the number of shares of each class or series of stock of the Corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person or any of its affiliates or associates (for purposes of these bylaws, as such terms are defined in Rule 12b-2 promulgated under the Exchange Act), except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of stock of the Corporation as to which such Proposing Person or any of its affiliates or associates has a right to acquire beneficial ownership at any time in the future (the disclosures to be made pursuant to the foregoing clauses (A) and (B) are referred to as “Stockholder Information”);

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(b)            As to each Proposing Person, (A) the full notional amount of any securities that, directly or indirectly, underlie any “derivative security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) (“Synthetic Equity Position”) and that is, directly or indirectly, held or maintained by such Proposing Person with respect to any shares of any class or series of stock of the Corporation; provided that, for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also include any security or instrument that would not otherwise constitute a “derivative security” as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some future date or upon the happening of a future occurrence (including, without limitation, any derivative, swap, hedge, repurchase or so-called “stock borrowing” agreement or arrangement, the purpose or effect of which is to, directly or indirectly (a) give a Person economic benefit and/or risk similar to ownership of shares of any class or series of capital stock of the Corporation, in whole or in part, including due to the fact that such transaction, agreement or arrangement provides, directly or indirectly, the opportunity to profit or avoid a loss from any increase or decrease in the value of any shares of any class or series of capital stock of the Corporation, (b) mitigate loss to, reduce the economic risk of or manage the risk of share price changes for, any Person with respect to any shares of any class or series of capital stock of the Corporation, (c) otherwise provide in any manner the opportunity to profit or avoid a loss from any decrease in the value of any shares of any class or series of capital stock of the Corporation, or (d) increase or decrease the voting power of any Person with respect to any shares of any class or series of capital stock of the Corporation) in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any securities that underlie a Synthetic Equity Position held by such Proposing Person as a hedge with respect to a bona fide derivatives trade or position of such Proposing Person arising in the ordinary course of such Proposing Person’s business as a derivatives dealer, (B) any performance-related fee (other than an asset-based fee) that such Proposing Person, directly or indirectly, is entitled to receive that is based on any increase or decrease in the value of shares of any class or series of capital stock of the Corporation or any Synthetic Equity Position, (C) any rights to dividends or distributions on the shares of any class or series of stock of the Corporation owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, (D) any material pending or threatened legal proceeding in which such Proposing Person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (E) any other material relationship between such Proposing Person, on the one hand, and the Corporation or any affiliate of the Corporation, on the other hand, (F) any direct or indirect material interest in any material contract or agreement of such Proposing Person with the Corporation or any affiliate of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), (G) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has or shares a right to, directly or indirectly, vote any shares of any class or series of capital stock of the Corporation and (H) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to be made pursuant to the foregoing clauses (A) through (G) are referred to as “Disclosable Interests”); provided, however, that Disclosable Interests shall not include any such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these bylaws on behalf of a beneficial owner;

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(c)            As to each item of business that the stockholder proposes to bring before the annual meeting, (A) a brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest in such business of each Proposing Person, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration and, if such business includes a proposal to amend these bylaws or the Certificate of Incorporation, the text of such proposed amendment), (C) a reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the Proposing Persons or (y) between or among any Proposing Person and any other Person (including their names) in connection with the proposal of such business by such Proposing Person or in connection with acquiring, holding, disposing or voting of any shares of any class or series of capital stock of the Corporation, (D) identification of the names and addresses of other stockholders (including beneficial owners) known by any of the Proposing Persons to support such nominations or other business proposal(s), and to the extent known, the class and number of all shares of the Corporation’s capital stock owned of record or beneficially by such other stockholder(s) or other beneficial owner(s) and (E) any other information relating to such item of business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; provided, however, that the disclosures required by this Section 2.4(iii) shall not include any disclosures with respect to any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these bylaws on behalf of a beneficial owner;

(d)            An acknowledgement that if such stockholder giving the notice (or such stockholder’s qualified representative) does not appear at such meeting (including virtually in the case of a meeting held solely by means of remote communication) to present the proposed business, the Corporation need not present such proposed business for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the Corporation;

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(e)            A representation as to whether or not the Proposing Person intends (or is part of a group that intends) to (1) deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s voting shares required under the DGCL, the Certificate of Incorporation and these bylaws to carry the proposal (an affirmative statement of such intent being a “Solicitation Notice”) or (2) otherwise engage in a solicitation (within the meaning of Rule 14a-1(l) under the Exchange Act) with respect to the proposal, and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such solicitation; and

(f)            Such written consent of the Proposing Person to the public disclosure of information provided to the Corporation pursuant to this Section 2.4.

(iv)            For purposes of this Section 2.4, the term “Proposing Person” shall mean (a) the stockholder providing the notice of business proposed to be brought before an annual meeting, (b) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought before the annual meeting is made, and (c) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation.

(v)            A Proposing Person shall update and supplement its notice to the Corporation of its intent to propose business at an annual meeting, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.4 shall be true and correct as of the record date for notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment, rescheduling or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the secretary at the principal executive offices of the Corporation not later than the Close of Business five (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of such record date), and not later than the Close of Business eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof. If the Proposing Person has provided the Corporation with a Solicitation Notice, such Proposing Person must have delivered a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s voting shares required under the DGCL, the Certificate of Incorporation and these bylaws to carry any such proposal and must have included in such materials the Solicitation Notice. If no Solicitation Notice relating thereto has been timely provided pursuant to this Section 2.4, the Proposing Person must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this Section 2.4. Notwithstanding the foregoing provisions of this Section 2.4, unless otherwise required by law, if the stockholder giving the notice required by this Section 2.4 (or such stockholder’s qualified representative) does not appear at the annual or special meeting of stockholders of the Corporation to present the proposed item of business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.

(vi)            Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at an annual meeting that is not properly brought before the meeting in accordance with this Section 2.4. The Board or a designated committee thereof shall have the power to determine whether business proposed to be brought before the annual meeting was made in accordance with the provisions of these bylaws. If neither the Board nor such designated committee makes a determination as to whether any nomination was made in accordance with the provisions of these bylaws, the chairperson of the meeting shall, if the facts warrant, determine that the business was not properly brought before the meeting in accordance with this Section 2.4, and if he or she should so determine, he or she shall so declare to the meeting. If the Board or a designated committee thereof or the chairperson of the meeting, as applicable, determines that any stockholder proposal was not made in accordance with the provisions of this Section 2.4, any such business not properly brought before the meeting shall not be transacted.

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(vii)            In addition to the requirements of this Section 2.4 with respect to any business proposed to be brought before an annual meeting, each Proposing Person shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing in this Section 2.4 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or the holders of any series of Preferred Stock (as defined in the Certificate of Incorporation).

(viii)            For purposes of these bylaws, (i) “public disclosure” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act and (ii)  “qualified representative” shall mean (1) a duly authorized officer, manager or partner of the stockholder giving the notice required by this Section 2.4 or Section 2.5 of these bylaws or (2) a person authorized by a writing executed by such stockholder (or a reliable reproduction or electronic transmission of such a writing) delivered by such stockholder to the Secretary of the Corporation at the principal executive offices of the Corporation prior to the making of any nomination or proposal at a stockholder meeting stating that such person is authorized to act for such stockholder as proxy at the meeting of stockholders, which writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, must be produced at least 24 hours prior to the meeting of stockholders.

2.5            Advance Notice Procedures for Nominations of Directors.

(i)            Annual Meeting of Stockholders. Nominations of any person for election to the Board in the case of an annual meeting may be made at such meeting only (1) by or at the direction of the Board or a committee thereof, (2) as provided in the stockholders agreement, dated [●], 202[●] between [●] and the Corporation (the “Stockholders Agreement”), or (3) by a stockholder present in person (as defined in Section 2.4) who (i) was a record owner of shares of the Corporation both at the time of giving the notice provided for in this Section 2.5 and at the time of the meeting, (ii) is entitled to vote at the meeting and (iii) has complied with this Section 2.5 as to such notice and nomination.

(a)            The foregoing clause (3) shall be the exclusive means for a stockholder, other than as provided in the Stockholders Agreement, to make any nomination of a Person or Persons for election to the Board at any annual meeting of stockholders.

(b)            Without qualification, for a stockholder to make any nomination of a person or persons for election to the Board at an annual meeting pursuant to Section 2.5(i)(c), the stockholder must (A) provide Timely Notice (as defined in Section 2.4(ii) of these bylaws) thereof in writing and in proper form to the secretary of the Corporation, (B) provide the information, agreements and questionnaires with respect to such stockholder and its candidate for nomination as required to be set forth by this Section 2.5, and (C) provide any updates or supplements to such notice at the times and in the forms required by this Section 2.5. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. The number of nominees a Nominating Person may nominate for election at the annual meeting pursuant to Section 2.5(i)(c) of these bylaws shall not exceed the number of directors to be elected at such annual meeting.

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(c)            To be in proper form for purposes of Section 2.5(i)(c), a stockholder’s notice to the secretary shall set forth:

(A)            As to each Nominating Person (as defined below), the Stockholder Information (as defined in Section 2.4(iii)(a) of these bylaws) except that for purposes of this Section 2.5, the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.4(iii)(a);

(B)            As to each Nominating Person, any Disclosable Interests (as defined in Section 2.4(iii)(b) and the information required by Section 2.4(iii)(c), except that for purposes of this Section 2.5 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places it appears in Section 2.4(iii)(b) and Section 2.4(iii)(c) and the information required by Section 2.4(iii)(c) shall be made with respect to nomination of each Person for election as a director at the meeting;

(C)            As to each candidate whom a Nominating Person proposes to nominate for election as a director, (1) all information with respect to such candidate for nomination that would be required to be set forth in a stockholder’s notice pursuant to this Section 2.5 if such candidate for nomination were a Nominating Person, (2) all information relating to such candidate for nomination that is required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election pursuant to Section 14(a) under the Exchange Act (including such candidate’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (3) a description of any direct or indirect material interest in any material contract or agreement between or among any Nominating Person, on the one hand, and each candidate for nomination or any other participants in such solicitation, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the “registrant” for purposes of such rule and the candidate for nomination were a director or executive officer of such registrant (the disclosures to be made pursuant to the foregoing clauses (1) through (3) are referred to as “Nominee Information”), and (4) a completed and signed questionnaire, representation and agreement as provided in Section 2.5(e);

(D)            An acknowledgement that if the stockholder giving the notice (or such stockholder’s qualified representative) does not appear at such meeting (including virtually in the case of a meeting held solely by means of remote communication) to present the stockholder’s proposed nominee for election, the Corporation need not present such nominee for election, notwithstanding that proxies in respect of such vote may have been received by the Corporation;

(E)            A representation as to whether or not the Nominating Person intends (or is part of a group that intends) to (1) deliver a proxy statement and form of proxy to at least sixty seven percent (67%) of voting power of all of the shares of capital stock of the Corporation (an affirmative statement of such intent being a “Nominee Solicitation Notice”) or (2) otherwise engage in a solicitation (within the meaning of Rule 14a-1(l) under the Exchange Act) with respect to the nomination, and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such solicitation; and

(F)            Any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with the solicitation of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.

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(d)            A stockholder providing notice of any nomination proposed to be made at the applicable meeting of stockholders shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.5 shall be true and correct as of the record date for notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the secretary at the principal executive offices of the Corporation not later than the Close of Business five (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of such record date), and not later than the Close of Business eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof. If the Nominating Person has provided the Corporation with a Nominee Solicitation Notice, such stockholder or beneficial owner must have delivered a proxy statement and form of proxy to holders of at least sixty seven percent (67%) of the Corporation’s voting shares, and must have included in such materials the Nominee Solicitation Notice. If no Nominee Solicitation Notice relating thereto has been timely provided, the Nominating Person proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Nominee Solicitation Notice. Notwithstanding the foregoing provisions, unless otherwise required by law, if the stockholder giving the notice required by this section (or such stockholder’s qualified representative) does not appear at the meeting of stockholders of the Corporation to present its nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such vote may have been received by the Corporation.

(e)            To be eligible to be a candidate for election as a director of the Corporation at the applicable meeting of stockholders, a candidate must be nominated in the manner prescribed in this Section 2.5 and the candidate for nomination, whether nominated by the Board or by a stockholder of record, must have previously delivered (in accordance with the time period prescribed for delivery in a notice to such candidate given by or on behalf of the Board), to the secretary at the principal executive offices of the Corporation, (1) a completed written questionnaire (in the form provided by the Corporation) with respect to the background, qualifications, stock ownership and independence of such candidate for nomination and (2) upon request of the Corporation, a written representation and agreement (in the form provided by the Corporation) that such candidate for nomination (A) is not, and will not become a party to, any agreement, arrangement or understanding with any Person other than the Corporation with respect to any direct or indirect compensation or reimbursement for service as a director of the Corporation that has not been disclosed therein, (B) understands his or her duties as a director under the DCGL, the Certificate of Incorporation and the policies and guidelines of the Corporation applicable to all directors and agrees to act in accordance with those duties while serving as a director, (C) is not or will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any Person as to how such nominee, if elected as a director, will act or vote as a director on any issue or question to be decided by the Board, in any case, to the extent that such arrangement, understanding, commitment or assurance (i) could limit or interfere with his or her ability to comply, if elected as director of the Corporation, with his or her fiduciary duties under applicable law or with policies and guidelines of the Corporation applicable to all directors or (ii) has not been disclosed to the Corporation prior to or concurrently with the Nominating Person’s submission of the nomination, and (D) if elected as a director of the Corporation, will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading and other policies and guidelines of the Corporation applicable to all directors and in effect during such Person’s term in office as a director (and, if requested by any candidate for nomination, the secretary of the Corporation shall provide to such candidate for nomination all such policies and guidelines then in effect).

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(f)            The Board may also require any proposed candidate for nomination as a director to furnish such other information as may reasonably be requested by the Board in writing prior to the applicable meeting of stockholders at which such candidate’s nomination is to be acted upon in order for the Board to determine the eligibility of such candidate for nomination to be an independent director of the Corporation in accordance with the Corporation’s Corporate Governance Guidelines, if any.

(ii)            Special Meetings of Stockholders. No business may be transacted at any special meeting of stockholders other than the business specified in the notice of such meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board or a committee thereof, (2) as provided in the Stockholders Agreement or (3) provided that the Board has determined that directors shall be elected at such meeting, by a stockholder present in person (as defined in Section 2.4) who (i) was a record owner of shares of the Corporation both at the time of giving the notice provided for in this Section 2.5 and at the time of the meeting, (ii) is entitled to vote at the meeting and (iii) has complied with this Section 2.5 as to such notice and nomination. The foregoing clause (3) shall be the exclusive means for a stockholder, other than as provided in the Stockholders Agreement, to make any nomination of a Person or Persons for election to the Board at any special meeting of stockholders. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting if the stockholder’s notice as required by and meeting the requirements of paragraphs (i)(b), (i)(c), (i)(d), (i)(e) and (i)(f) of this Section 2.5 shall be delivered to the secretary of the Corporation at the principal executive offices of the Corporation not earlier than the Close of Business on the one hundred twentieth (120^th) day prior to such special meeting and not later than the Close of Business on the later of the ninetieth (90^th) day prior to such special meeting or the tenth (10^th ) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall any adjournment or postponement of a special meeting or the announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

(iii)            General.

(a)            For purposes of this Section 2.5, the term “Nominating Person” shall mean (1) the stockholder providing the notice of the nomination proposed to be made at the meeting, (2) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination proposed to be made at the meeting is made, and (3) any other participant in such solicitation.

(b)            Notwithstanding anything in these bylaws to the contrary, no candidate for nomination shall be eligible to be seated as a director of the Corporation unless nominated and elected in accordance with this Section 2.5; provided, however, that, notwithstanding anything in these bylaws to the contrary, for as long as the Stockholders Agreement remains in effect, any nomination made pursuant to the Stockholders Agreement shall not be subject to the procedures or requirements set forth in this Section 2.5.

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(c)            In addition to the requirements of this Section 2.5 with respect to any nomination proposed to be made at a meeting, each Nominating Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations.

(d)            No candidate shall be eligible for nomination as a director of the Corporation unless such candidate for nomination and the Nominating Person seeking to place such candidate’s name in nomination has complied with this Section 2.5, as applicable. The Board or a designated committee thereof shall have the power to determine whether a nomination before the applicable meeting of stockholders was made in accordance with the provisions of these bylaws. If neither the Board nor such designated committee makes a determination as to whether any nomination was made in accordance with the provisions of these bylaws, the chairperson of the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with this Section 2.5, and if he or she should so determine, he or she shall so declare such determination to the meeting; provided, however, that nothing herein shall limit the power and authority of the Board or such designated committee to make any such determination in advance of such meeting. If the Board or a designated committee thereof or the chairperson of the meeting, as applicable, determines that any nomination was not made in accordance with the provisions of this Section 2.5, the nomination shall be disregarded and any ballots cast for the candidate in question (but in the case of any form of ballot listing other qualified nominees, only the ballots cast for the nominee in question) shall be void and of no force or effect.

(e)            Unless otherwise required by law, if any Nominating Person giving notice as required in accordance with this Section 2.5 and pursuant to Rule 14a-19(b) promulgated under the Exchange Act subsequently fails to comply with any of the requirements of these Bylaws (including this Section 2.5) and Rule 14a-19 promulgated under the Exchange Act (including Rule 14a-19(a)(2) and Rule 14a-19(a)(3)), then the Corporation shall disregard any proxies or votes solicited for the Nominating Person’s nominee. Upon request by the Corporation, if any Nominating Person provides notice in accordance with this Section 2.5 and pursuant to Rule 14a-19(b) promulgated under the Exchange Act, such Nominating Person shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act and this Section 2.5.

2.6            Notice of Stockholders’ Meetings.

Unless otherwise provided by applicable law, the Certificate of Incorporation or these bylaws, the notice of any meeting of stockholders shall be sent or otherwise given in accordance with either Section 2.7 or Section 8.1 of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.

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2.7            Manner of Giving Notice; Affidavit of Notice.

Notice of any meeting of stockholders shall be deemed given:

(i)            if mailed, when deposited in the United States mail, postage prepaid, directed to the stockholder at his or her address as it appears on the Corporation’s records;

(i)            if delivered by courier service, at the earlier of when the notice is received or left at such stockholder’s address; or

(ii)            if electronically transmitted as provided in Section 8.1 of these bylaws.

An affidavit of the secretary or an assistant secretary of the Corporation or of the transfer agent or any other agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

2.8            Quorum.

Unless otherwise provided by applicable law, the Certificate of Incorporation or these bylaws, the holders of a majority in voting power of the stock issued and outstanding and entitled to vote, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders. If, however, a quorum is not present or represented at any meeting of the stockholders, then either (i) the chairperson of the meeting or (ii) a majority in voting power of the stockholders entitled to vote at the meeting, present in person, or by remote communication, if applicable, or represented by proxy, shall have power to adjourn the meeting from time to time in the manner provided in Section 2.9 of these bylaws until a quorum is present or represented.

2.9            Adjourned Meeting; Notice.

When a meeting is adjourned to another time or place (including, without limitation, in the case of an adjournment taken to address a technical failure to convene or continue a meeting using remote communication), if any, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are (i) announced at the meeting at which the adjournment is taken, (ii) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy holders to participate in the meeting by means of remote communication or (iii) set forth in the notice of meeting given in accordance with these bylaws. At any adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting.

2.10            Conduct of Business.

The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairperson of the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the chairperson of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairperson of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other Persons as the chairperson of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairperson of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

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2.11            Voting.

Except as may be otherwise provided in the Certificate of Incorporation, these bylaws or the DGCL, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.

Except as otherwise provided by the Certificate of Incorporation, at all duly called or convened meetings of stockholders at which a quorum is present, for the election of directors, a plurality of the votes cast shall be sufficient to elect a director. Except as otherwise provided by the Certificate of Incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law, or pursuant to any regulation applicable to the Corporation or its securities, each other matter presented to the stockholders at a duly called or convened meeting at which a quorum is present shall be decided by the affirmative vote of the holders of a majority of the votes cast (excluding abstentions and broker non-votes) on such matter.

2.12            Record Date for Stockholder Meetings and Other Purposes.

In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the Close of Business on the next day preceding the day on which notice is first given, or, if notice is waived, at the Close of Business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting; and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

If stockholder action by consent in lieu of a meeting is not prohibited by the Certificate of Incorporation, in order that the Corporation may determine the stockholders entitled to express consent to corporate action in lieu of a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board. If no record date for determining stockholders entitled to express consent to corporate action in lieu of a meeting is fixed by the Board, (i) when no prior action of the Board is required by law, the record date for such purpose shall be the first date on which a signed consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, and (ii) if prior action by the Board is required by law, the record date for such purpose shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.

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In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of capital stock, or for the purposes of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the Close of Business on the day on which the Board adopts the resolution relating thereto.

2.13            Proxies.

Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another Person or Persons to act for such stockholder by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but, no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. The authorization of a Person to act as a proxy may be documented, signed and delivered in accordance with Section 116 of the DGCL, provided that such authorization shall set forth, or be delivered with information enabling the Corporation to determine, the identity of the stockholder granting such authorization.

2.14            List of Stockholders Entitled to Vote.

The Corporation shall prepare, no later than the tenth (10^th) day before each meeting of stockholders, a complete list of the stockholders of record entitled to vote at the meeting (provided, however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number and class of shares registered in the name of each stockholder. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of 10 days ending on the day prior to the meeting date: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the Corporation’s principal executive offices. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. Such list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them. Except as otherwise provided by applicable law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.14 or to vote in Person or by proxy at any meeting of stockholders.

2.15            Inspectors of Election.

Before any meeting of stockholders, the Corporation shall appoint an inspector or inspectors of election to act at the meeting or its adjournment and make a written report thereof. The Corporation may designate one or more Persons as alternate inspectors to replace any inspector who fails to act. If any Person appointed as inspector or any alternate fails to appear or fails or refuses to act, then the chairperson of the meeting shall appoint a Person to fill that vacancy.

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Such inspectors shall:

(i)            determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting and the validity of any proxies and ballots;

(ii)            count all votes or ballots;

(iii)            count and tabulate all votes;

(iv)            determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspector(s); and

(v)            certify its or their determination of the number of shares represented at the meeting and its or their count of all votes and ballots.

Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspection with strict impartiality and according to the best of such inspector’s ability. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein. The inspectors of election may appoint such Persons to assist them in performing their duties as they determine. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election. If there is more than one inspector, the report of a majority shall be the report of the inspectors.

2.16            Virtual Meeting.

The Board may, in its sole discretion, determine that stockholder meetings shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the DGCL. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication (i) participate in a meeting of stockholders; and (ii) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (a) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder; (b) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and (c) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

2.17            Delivery to the Corporation.

Whenever this Article II requires one or more Persons (including a record or beneficial owner of stock) other than any party to the Stockholders Agreement to deliver a document or information to the Corporation or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation, representation or other document or agreement), unless the Corporation otherwise provides, such document or information shall be in writing exclusively (and not in an electronic transmission) and shall be delivered exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail, return receipt requested, and the Corporation shall not be required to accept delivery of any document not in such written form or so delivered.

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Article III– Directors

3.1            Powers.

Except as otherwise provided by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board.

3.2            Number of Directors.

Subject to the Certificate of Incorporation and the rights of any party to the Stockholders Agreement with respect to the election of directors, the total number of directors constituting the Board shall be determined from time to time by resolution of the Board. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.

3.3            Election, Qualification and Term of Office of Directors.

Except as provided in the Certificate of Incorporation, each director shall hold office until the expiration of the term of the class, if any, for which elected and until such director’s successor is elected and qualified or until such director’s earlier death, resignation, disqualification, or removal. Directors need not be stockholders. The Certificate of Incorporation or these bylaws may prescribe qualifications for directors.

3.4            Resignation and Vacancies.

Any director may resign at any time upon notice given in writing or by electronic transmission to the Board or to the chairperson of the Board. The resignation shall take effect at the time specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its receipt. Subject to the rights of any party to the Stockholders Agreement with respect to the election of directors, when one or more directors so resigns and the resignation is effective at a future date or upon the happening of an event to occur on a future date, a majority of the directors then in office, including those who have so resigned but whose resignations have not yet become effective, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies.

Vacancies and newly created directorships resulting from any increase in the authorized number of directors shall be filled only in the manner provided in the Certificate of Incorporation, the Stockholders Agreement and applicable law.

3.5            Place of Meetings; Meetings by Telephone.

The Board may hold meetings, both regular and special, either within or outside the State of Delaware.

Unless otherwise restricted by the Certificate of Incorporation or these bylaws, members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting pursuant to this bylaw shall constitute presence in person at the meeting.

3.6            Regular Meetings.

Regular meetings of the Board may be held without notice at such time and at such place as shall from time to time be determined by the Board.

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3.7            Special Meetings; Notice.

Special meetings of the Board for any purpose or purposes may be called at any time by the chairperson of the Board, the chief executive officer, the president, the secretary or a majority of the total number of directors constituting the Board.

Notice of the time and place of special meetings shall be:

(i)            delivered personally by hand or by courier;

(ii)            sent by United States first-class mail, postage prepaid;

(iii)            sent by facsimile or electronic mail; or

(iv)            sent by other means of electronic transmission,

directed to each director at that director’s address, facsimile number or electronic mail address, or other address for electronic transmission, as the case may be, as shown on the Corporation’s records.

If the notice is (i) delivered personally by hand or by courier, (ii) sent by facsimile or electronic mail, or (iii) sent by other means of electronic transmission, it shall be delivered or sent at least 24 hours before the time of the holding of the meeting. If the notice is sent by mail, it shall be deposited in the mail at least two days before the time of the holding of the meeting. The notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive office) nor the purpose of the meeting.

3.8            Quorum.

Unless otherwise provided by the Certificate of Incorporation, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business at all meetings of the Board. The vote of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board, except as may be otherwise specifically provided by the DGCL, the Certificate of Incorporation or these bylaws. If a quorum is not present at any meeting of the Board, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

3.9            Action by Unanimous Consent Without a Meeting.

Unless otherwise restricted by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission and any consent may be documented, signed and delivered in any manner permitted by Section 116 of the DGCL. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of proceedings of the Board or committee, as applicable, and such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

3.10            Fees and Compensation of Directors.

Unless otherwise restricted by the Certificate of Incorporation or these bylaws, the Board shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.

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3.11            Removal.

Directors may be removed from office only in the manner provided in the Certificate of Incorporation, the Stockholders Agreement and applicable law.

3.12            Chairperson, Vice Chairperson.

The Board may appoint a chairperson of the Board from its members, who shall have all the customary duties and responsibilities of such office. The chairperson may be (but shall not be required to be) the chief executive officer or another executive officer of the Corporation. The Board also may appoint a vice chairperson of the Board from its members and prescribe his or her powers and duties. The chairperson shall preside over all meetings of the Board and of the Corporation’s stockholders and shall exercise such powers and perform such duties as shall be assigned to or required of the chairperson of the Board from time to time by the Board or these bylaws. If the chairperson is unable to so preside over any meetings of the Board or the Corporation’s stockholders, or is absent, then the vice chairperson of the Board, if one is appointed, shall preside over all meetings of the Board. If the chairperson of the Board, and the vice chairperson of the Board, if one is appointed, are unable to preside or are absent, the Board shall designate an alternate representative to preside over a meeting of the Board.

Article IV - Committees

4.1            Committees of Directors.

The Board may designate one (1) or more committees, each committee to consist of one (1) or more of the directors of the Corporation. The Board may designate one (1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board or in these bylaws, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.

4.2            Committee Minutes.

Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

4.3            Meetings and Actions of Committees.

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of:

(i)            Section 3.5 (place of meetings and meetings by telephone);

(ii)            Section 3.6 (regular meetings);

(iii)            Section 3.7 (special meetings and notice);

(iv)            Section 3.9 (action by unanimous consent without a meeting);

(v)            Section 3.12 (chairperson, vice chairperson); and

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(vi)            Section 7.11 (waiver of notice),

with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board and its members. However:

(i)            the time of regular meetings of committees may be determined either by resolution of the Board or by resolution of the committee; and

(ii)            special meetings of committees may also be called by resolution of the Board or by the chairperson of the applicable committee.

A majority of the directors then serving on a committee of the Board or on a subcommittee of a committee shall constitute a quorum for the transaction of business by the committee or subcommittee, unless the Certificate of Incorporation or a resolution of the Board (or a resolution of the committee that created the subcommittee) requires a greater or lesser number (provided that in no case shall a quorum be less than one-third of the directors then serving on the committee or subcommittee). The vote of a majority of the members of the committee or subcommittee present at any meeting at which a quorum is present shall be the act of such committee or subcommittee, unless the Certificate of Incorporation or a resolution of the Board (or a resolution of the committee that created the subcommittee) requires a greater number. If a quorum is not present at any meeting of the committee, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

The Board may adopt rules for the governance of any committee to override the provisions that would otherwise apply to the committee pursuant to this Section 4.3, provided that such rules do not violate the provisions of the Certificate of Incorporation, the rights of any party to the Stockholders Agreement with respect to the appointment of directors to committees of the Board or applicable law.

Article V - Officers

5.1            Officers.

The officers of the Corporation shall include one or more chief executive officers and secretaries. The Corporation may also have, at the discretion of the Board, one or more presidents, chief financial officers, treasurers, one (1) or more vice presidents, one (1) or more assistant vice presidents, one (1) or more assistant treasurers, one (1) or more assistant secretaries, and any such other officers as may be appointed in accordance with the provisions of these bylaws. Any number of offices may be held by the same Person.

5.2            Appointment of Officers.

The Board shall appoint the officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws. In the event of the absence or disability of any officer, the Board may designate another officer to act temporarily in place of such absent or disabled officer.

5.3            Subordinate Officers.

The Board may appoint, or empower one or more chief executive officers to appoint, such other officers and agents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the Board or an authorized officer (as applicable), may from time to time determine.

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5.4            Removal and Resignation of Officers.

Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board or, except in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board.

Any officer may resign at any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party.

5.5            Vacancies in Offices.

Any vacancy occurring in any office of the Corporation shall be filled by the Board or as provided in Sections 5.2 and 5.3, as applicable.

5.6            Representation of Securities of Other Entities.

The chairperson of the Board, the chief executive officer and the secretary, or, if appointed pursuant to Article V of these bylaws, the president, the chief financial officers, any vice president, the treasurer and any assistant secretary of this Corporation, or any other Person authorized by the Board, the chief executive officer, the president or a vice president, is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all securities of any other entity standing in the name of this Corporation. The authority granted herein may be exercised either by such Person directly or by any other Person authorized to do so by proxy or power of attorney duly executed by such Person having the authority.

5.7            Tenure, Authority and Duties of Officers.

Except as provided in Section 5.3, all officers of the Corporation shall hold such office, respectively have such authority and perform such duties in the management of the business of the Corporation as may be provided herein or designated from time to time by the Board and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board.

Article VI - Records

A stock ledger consisting of one or more records in which the names of all of the Corporation’s stockholders of record, the address and number of shares registered in the name of each such stockholder, and all issuances and transfers of stock of the corporation are recorded in accordance with Section 224 of the DGCL shall be administered by or on behalf of the Corporation. Any records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device, or method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases), provided that the records so kept can be converted into clearly legible paper form within a reasonable time and, with respect to the stock ledger, that the records so kept (i) can be used to prepare the list of stockholders specified in Sections 219 and 220 of the DGCL, (ii) record the information specified in Sections 156, 159, 217(a) and 218 of the DGCL, and (iii) record transfers of stock as governed by Article 8 of the Uniform Commercial Code.

Each director and each member of any committee designated by the Board shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books and records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers, agents or employees, or committees of the Board so designated, or by any other Person as to matters which such director or committee member reasonably believes are within such other Person’s professional or expert competence and that has been selected with reasonable care by or on behalf of the Corporation.

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Article VII - General Matters

7.1            Execution of Corporate Contracts and Instruments.

The Board may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

7.2            Stock Certificates.

The shares of the Corporation shall be uncertificated and issued pursuant to the customary arrangements for issuance, recordation and transfer of shares in such form, provided that the Board by resolution may provide that some or all of the shares of any class or series of stock of the Corporation shall be represented by certificates.

Certificates for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock represented by a certificate shall be entitled to have a certificate signed by, or in the name of the Corporation by, any two (2) officers authorized to sign stock certificates representing the number of shares registered in certificate form. The chairperson or vice chairperson of the Board, the president, the chief financial officer, vice president, the treasurer, any assistant treasurer, the secretary or any assistant secretary of the Corporation shall be specifically authorized to sign stock certificates. Any or all of the signatures on any certificate may be electronic. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

7.3            Lost, Destroyed or Wrongfully Taken Certificates.

The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares. If a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers a transfer of such shares before receiving notification thereof, the owner shall be precluded from asserting against the Corporation any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.

7.4            Dividends.

The Board, subject to any restrictions contained in either (i) the DGCL or (ii) the Certificate of Incorporation, may declare and pay dividends upon the shares of its capital stock. Dividends may be paid in cash, in property or in shares of the Corporation’s capital stock.

The Board may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation, and meeting contingencies.

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7.5            Fiscal Year.

The fiscal year of the Corporation shall be fixed by resolution of the Board and may be changed by the Board. Unless otherwise fixed by the Board, the fiscal year of the Corporation shall consist of the twelve (12) month period ending on December 31.

7.6            Seal.

The Corporation may adopt a corporate seal, which shall be adopted and which may be altered by the Board. The Corporation may use the corporate seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

7.7            Transfer of Stock.

Shares of the Corporation shall be transferable in the manner prescribed by law and in these bylaws. Shares of stock of the Corporation shall be transferred on the books of the Corporation only by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the Corporation of the certificate or certificates representing such shares endorsed by the appropriate Person or Persons (if such shares are represented by certificates) or by delivery of duly executed instructions (if such shares are uncertificated), with such evidence of the authenticity of such endorsement or execution, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing the names of the Persons from and to whom it was transferred.

7.8            Stock Transfer Agreements.

The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes or series of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.

7.9            Registered Stockholders.

The Corporation:

(i)            shall be entitled to recognize the exclusive right of a Person registered on its books as the owner of shares to receive dividends, subject to any restrictions included in the DGCL or the Certificate of Incorporation, and to vote as such owner; and

(ii)            shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another Person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.

7.10            Waiver of Notice.

Whenever notice is required to be given under any provision of the DGCL, the Certificate of Incorporation or these bylaws, a written waiver of such notice, signed by the Person entitled to notice, or a waiver by electronic transmission by the Person entitled to notice, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to such required notice. Attendance of a Person at a meeting shall constitute a waiver of notice of such meeting, except when the Person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Certificate of Incorporation or these bylaws.

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Article VIII- Notice by Electronic Transmission

8.1            Notice by Electronic Transmission.

Except as otherwise specifically required in these bylaws or by applicable law, all notices required to be given pursuant to these bylaws may in every instance in connection with any delivery to a member of the Board, be effectively given by hand delivery (including use of a delivery service), by depositing such notice in the mail, postage prepaid, or by sending such notice by overnight express courier, facsimile, electronic mail or other form of electronic transmission. Whenever, by applicable law, the Certificate of Incorporation or these bylaws, notice is required to be given to any stockholder, such notice may be given in writing directed to such stockholder’s mailing address or by electronic transmission directed to such stockholder’s electronic mail address, as applicable, as it appears on the records of the Corporation or by such other form of electronic transmission consented to by the stockholder. A notice to a stockholder shall be deemed given as follows: (a) if mailed, when the notice is deposited in the United States mail, postage prepaid, (b) if delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address, (c) if given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by Section 232(e) of the DGCL, and (d) if given by a form of electronic transmission (other than electronic mail) consented to by the stockholder to whom the notice is given, (i) if by facsimile transmission, when directed to a number at which such stockholder has consented to receive notice, (ii) if by a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of (A) such posting and (B) the giving of such separate notice, and (iii) if by any other form of electronic transmission (other than electronic mail), when directed to such stockholder. A stockholder may revoke such stockholder’s consent to receiving notice by means of electronic transmission by giving written notice or by electronic transmission of such revocation to the Corporation. A notice may not be given by an electronic transmission from and after the time that (x) the Corporation is unable to deliver by such electronic transmission two (2) consecutive notices and (y) such inability becomes known to the secretary or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to discover such inability shall not invalidate any meeting or other action. Any notice given by electronic mail must include a prominent legend that the communication is an important notice regarding the Corporation.

An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the Corporation that the notice has been given by electronic mail or by another form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

8.2            Definition of Electronic Transmission.

An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

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Article IX - Indemnification

9.1            Indemnification of Directors and Officers.

The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such person in connection with any such Proceeding.

Subject to the requirements in this Article IX and the DGCL, the Corporation shall not be obligated to indemnify any person pursuant to this Article IX in connection with any Proceeding (or any part of any Proceeding):

(a)	for which payment has actually been made to and received by or on behalf of such person under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid;
(b)	for an accounting or disgorgement of profits pursuant to Section 16(b) of the Exchange Act, or similar provisions of federal, state or local statutory law or common law, if such person is held liable therefor (including pursuant to any settlement arrangements);
(c)	for any reimbursement of the Corporation by such person of any bonus or other incentive-based or equity-based compensation or of any profits realized by such person from the sale of securities of the Corporation, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Corporation pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), the payment to the Corporation of profits arising from the purchase and sale by such person of securities in violation of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including pursuant to any settlement arrangements), or any other remuneration paid to such person if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law;
(d)	initiated by such person, including any Proceeding (or any part of any Proceeding) initiated by such person against the Corporation, any legal entity which it controls, any director or officer thereof or any third party, unless (i) the Board has consented to the initiation of such Proceeding or part thereof, (ii) the Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Corporation under applicable law (provided, however, that this 9.1 shall not apply to counterclaims or affirmative defenses asserted by such person in an action brought against such person), (iii) otherwise required to be made under Section 9.4 or (iv) otherwise required by applicable law; or

(e) if prohibited by applicable law; provided, however, that if any provision or provisions of this Article IX shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Article IX (including, without limitation, each portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Article IX (including, without limitation, each such portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

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9.2            Indemnification of Others.

The Corporation shall have the power to indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.

9.3            Prepayment of Expenses.

The Corporation shall, to the fullest extent not prohibited by applicable law, pay the expenses (including, without limitation, attorneys’ fees) incurred by any current or former officer or director of the Corporation in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article IX or otherwise.

9.4            Determination; Claim.

If a claim for indemnification (following the final disposition of such Proceeding) under this Article IX is not paid in full within sixty (60) days, or a claim for advancement of expenses under this Article IX is not paid in full within thirty (30) days after a written claim therefor has been received by the Corporation, the claimant may thereafter (but not before) file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.

9.5            Non-Exclusivity of Rights.

The rights conferred on any Person by this Article IX shall not be exclusive of any other rights which such Person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

9.6            Insurance.

The Corporation may purchase and maintain insurance on behalf of any Person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust enterprise or non-profit entity against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of the DGCL.

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9.7            Other Indemnification.

The Corporation’s obligation, if any, to indemnify or advance expenses to any Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

9.8            Continuation of Indemnification.

Subject to the terms of any provision of the Certificate of Incorporation or agreement between the Corporation and any director, officer, employee or agent respecting indemnification and advancement of expenses, the rights to indemnification and to prepayment of expenses provided by, or granted pursuant to, this Article IX shall continue notwithstanding that the Person has ceased to be a director, officer, employee or agent of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such Person.

9.9            Amendment or Repeal; Interpretation.

Any repeal or modification of this Article IX shall not adversely affect any right or protection (i) hereunder of any Person in respect of any act or omission occurring prior to the time of such repeal or modification or (ii) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in effect prior to the time of such repeal or modification.

Any reference to an officer of the Corporation in this Article IX shall be deemed to refer exclusively to a chief executive officer, a chief financial officer, a secretary or a treasurer appointed pursuant to Article V of these bylaws, and to any president, vice president, assistant secretary, assistant treasurer, or other officer of the Corporation appointed by (x) the Board pursuant to Article V of these bylaws or (y) an officer to whom the Board has delegated the power to appoint officers pursuant to Article V of these bylaws, and any reference to an officer of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be deemed to refer exclusively to an officer appointed by the board of directors (or equivalent governing body) of such other entity pursuant to the certificate of incorporation and bylaws (or equivalent organizational documents) of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise. The fact that any person who is or was an employee of the Corporation or an employee of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise has been given or has used the title of “vice president” or any other title that could be construed to suggest or imply that such person is or may be an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being constituted as, or being deemed to be, an officer of the Corporation or of such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise for purposes of this Article IX.

Article X – Definitions

As used in these bylaws, unless the context otherwise requires, the term:

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

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“Person” means any individual, corporation, limited liability company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity, whether domestic or foreign.

Article XI – Limitations of Ownership by Non-Citizens

11.1            For purposes of this Article XI, the following definitions shall apply:

(i)            “Act” shall mean Subtitle VII of Title 49 of the United States Code, as amended, or as the same may be from time to time amended.

(ii)            “Beneficial Ownership,” “Beneficially Owned” or “Owned Beneficially” refers to beneficial ownership as defined in Rule 13d-3 (without regard to the 60-day provision in paragraph (d) (1)(i) thereof) under the Exchange Act.

(iii)            “Foreign Stock Record” shall have the meaning set forth in Section 3.

(iv)            “Non-Citizen” shall mean any person or entity who is not a “citizen of the United States” (as defined in Section 41102 of the Act and administrative interpretations issued by the Department of Transportation, its predecessors and successors, from time to time), including any agent, trustee or representative of a Non-Citizen.

(v)            “Own or Control” or “Owned or Controlled” shall mean (i) ownership of record, (ii) beneficial ownership or (iii) the power to direct, by agreement, agency or in any other manner, the voting of Stock. Any determination by the Board of Directors as to whether Stock is Owned or Controlled by a Non-Citizen shall be final.

(vi)            “Permitted Percentage” shall mean 25% of the voting power of the Stock.

(vii)            “Stock” shall mean the outstanding capital stock of the corporation entitled to vote; provided, however, that for the purpose of determining the voting power of Stock that shall at any time constitute the Permitted Percentage, the voting power of Stock outstanding shall not be adjusted downward solely because shares of Stock may not be entitled to vote by reason of any provision of this Article VII.

11.2            Limitations on Ownership. It is the policy of the corporation that, consistent with the requirements of the Act, Non-Citizens shall not Own and/or Control more than the Permitted Percentage and, if Non-Citizens nonetheless at any time Own and/or Control more than the Permitted Percentage, the voting rights of the Stock in excess of the Permitted Percentage shall be automatically suspended in accordance with Sections 11.3 and 11.4 of this Article XI below.

11.3            Foreign Stock Record. The corporation or any transfer agent designated by it shall maintain a separate stock record (the “Foreign Stock Record”) in which shall be registered Stock known to the corporation to be Owned and/or Controlled by Non-Citizens. It shall be the duty of each stockholder to register his, her or its Stock if such stockholder is a Non-Citizen. The Foreign Stock Record shall include (i) the name and nationality of each such Non-Citizen and (ii) the date of registration of such shares in the Foreign Stock Record. In no event shall shares in excess of the Permitted Percentage be entered on the Foreign Stock Record. In the event that the corporation shall determine that Stock registered on the Foreign Stock Record exceeds the Permitted Percentage, sufficient shares shall be removed from the Foreign Stock Record so that the number of shares entered therein does not exceed the Permitted Percentage. Stock shall be removed from the Foreign Stock Record in reverse chronological order based upon the date of registration therein.

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A Non-Citizen may register in the Foreign Stock Record any Stock to be purchased pursuant to an agreement entered into with the corporation, as if Owned or Controlled by it, upon execution of a definitive agreement. Such Non-Citizen shall register his, her or its Stock by sending a written request to the corporation, noting both the execution of a definitive agreement for the purchase of Stock and the anticipated closing date of such transaction. Within 10 days of the closing, the Non-Citizen shall send to the corporation a written notice confirming that the closing occurred. Failure to send such confirmatory notice shall result in the removal of such Stock from the Foreign Stock Record. For the sake of clarity, any Stock registered as a result of execution of a definitive agreement shall not have any voting or other ownership rights until the closing of that transaction. In the event that the sale pursuant to such definitive agreement is not consummated in accordance with such agreement (as may be amended), such Stock shall be removed from the Foreign Stock Record without further action by the corporation.

11.4            Suspension of Voting Rights. If at any time the number of shares of Stock known to the corporation to be Owned and/or Controlled by Non-Citizens exceeds the Permitted Percentage, the voting rights of Stock Owned and/or Controlled by Non-Citizens and not registered on the Foreign Stock Record at the time of any vote or action of the stockholders of the corporation shall, without further action by the corporation, be suspended. Such suspension of voting rights shall automatically terminate upon the earlier of the (i) transfer of such shares to a person or entity who is not a Non-Citizen, or (ii) registration of such shares on the Foreign Stock Record, subject to the last two sentences of Section 11.3.

11.5            Certification of Citizenship.

(i)            The corporation may by notice in writing (which may be included in the form of proxy or ballot distributed to stockholders in connection with the annual meeting or any special meeting of the stockholders of the corporation, or otherwise) require a person that is a holder of record of Stock or that the corporation knows to have, or has reasonable cause to believe has, Beneficial Ownership of Stock to certify in such manner as the corporation shall deem appropriate (including by way of execution of any form of proxy or ballot of such person) that, to the knowledge of such person:

(a)            all Stock as to which such person has record ownership or Beneficial Ownership is Owned and Controlled only by citizens of the United States; or

(b)            the number and class or series of Stock owned of record or Beneficially Owned by such person that is Owned and/or Controlled by Non-Citizens is as set forth in such certificate.

(ii)            With respect to any Stock identified in response to clause (i) above, the corporation may require such person to provide such further information as the corporation may reasonably require in order to implement the provisions of this Article XI.

(iii)            For purposes of applying the provisions of this Article XI with respect to any Stock, in the event of the failure of any person to provide the certificate or other information to which the corporation is entitled pursuant to this Section 11.5, the corporation shall presume that the Stock in question is Owned and/or Controlled by Non-Citizens.

11.6            Legend. Each certificate (if any), notice or other representative document for capital stock of the Corporation with voting rights (including each such certificate (if any), notice or representative document for capital stock issued upon any permitted transfer of capital stock) shall contain a legend in substantially the following form:

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE, NOTICE OR DOCUMENT ARE SUBJECT TO VOTING RESTRICTIONS WITH RESPECT TO CERTAIN SECURITIES HELD BY PERSONS OR ENTITIES THAT FAIL TO QUALIFY AS “CITIZENS OF THE UNITED STATES” AS THE TERM IS DEFINED USED IN SECTION 40102(A)(15) OF TITLE 49 OF THE UNITED STATES CODE, AS AMENDED, IN ANY SIMILAR LEGISLATION OF THE UNITED STATES ENACTED IN SUBSTITUTION OR REPLACEMENT THEREFOR, AND AS INTERPRETED BY THE DEPARTMENT OF TRANSPORTATION, ITS PREDECESSORS AND SUCCESSORS, FROM TIME TO TIME. SUCH VOTING RESTRICTIONS ARE CONTAINED IN THE CERTIFICATE OF INCORPORATION AND THE BYLAWS OF THE CORPORATION, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME. A COMPLETE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION AND THE BYLAWS SHALL BE FURNISHED FREE OF CHARGE TO THE HOLDER OF THE SECURITIES REPRESENTED HEREBY UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION.”

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Article XII-- Lock-up

12.1            Lock-Up. Except as otherwise determined by the Board, Lock-up Shares held by any Locked-up Holder shall not be Transferred until the end of the Lock-up Period. Certificates representing Lock-up Shares shall bear an appropriate legend indicating the restrictions on Transfer imposed by this Section 12.1. If any Lock-up Shares are uncertificated, notice of such legend shall be given in accordance with applicable law. Notwithstanding the foregoing, the Lock-up Shares shall be released on and following the date on which (a) the last reported sale price of the Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations and the like) for any 20 consecutive days within a 30-trading day period subsequent to the Closing Date and (b) the average daily trading volume for the shares of Common Stock exceeds 500,000 shares of Common Stock for each trading day during such consecutive 30-trading day period. Any waiver of the restrictions set forth in this Section 12.1 shall require the approval of a majority of the directors of the Board; provided, however, (i) any waiver of the restrictions in this Section 12.1 in respect of Lock-up Shares Beneficially Owned by any of the Directional Equityholders (as defined in the Stockholders Agreement) shall require the approval of a majority of the members of the Board who are not Directional Designees, and (ii) any waiver of the restrictions in this Section 12.1 in respect of Lock-up Shares Beneficially Owned by any of the Eldridge Equityholders or Sponsor Equityholders (as defined in the Stockholders Agreement) shall require the approval of a majority of the members of the Board excluding the Eldridge Designees.

12.2            Permitted Transferees. Notwithstanding the provisions set forth in Section 12.1, the Locked-up Holders or their respective Permitted Transferees (as defined below) shall be permitted, subject to compliance with applicable law, to Transfer their Lock-up Shares during the Lock-up Period (i) to (A) the Corporation’s officers or directors, (B) any Affiliates or family members of the Corporation’s officers or directors or (C) with respect to any Directional Equityholder (as defined in the Stockholders Agreement) and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Directional Equityholders, any Affiliates of the Directional Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates, (D) with respect to any Eldridge Equityholder (as defined in the Stockholders Agreement) and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Eldridge Equityholders, any Affiliates of the Eldridge Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates, or (E) with respect to any Sponsor Equityholder (as defined in the Stockholders Agreement) and its Permitted Transferees, any direct or indirect partners, members or equity holders of the Sponsor Equityholders, any Affiliates of the Sponsor Equityholders or any related investment funds or vehicles controlled or managed by such persons or their respective Affiliates; (ii) in the case of an individual, by gift to a member of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family or an Affiliate of such person; (iii) by gift to a charitable organization; (iv) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (v) in the case of an individual, pursuant to a qualified domestic relations order, (vi) in connection with any bona fide mortgage, encumbrance or pledge to a financial institution in connection with any bona fide loan or debt transaction or enforcement thereunder; (vii) to the Corporation; or (viii) in connection with a liquidation, merger, stock exchange, reorganization, tender offer approved by the Board or a duly authorized committee thereof or other similar transaction which results in all of the Corporation’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the Closing Date (each such transferee in clauses (i) – (vii) collectively, a “Permitted Transferee”); provided, however, that in the case of clauses (i) through (v) these Permitted Transferees must enter into a written agreement with the Corporation agreeing to be bound by the transfer restrictions in this Section 12.

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Section 12.3     Notwithstanding anything contained herein to the contrary, the Lock-up Period shall expire, and each Locked-up Holder and their respective Permitted Transferees, shall be entitled to Transfer all of its respective Lock-up Shares, immediately upon the date on which the Corporation completes a liquidation, merger, capital stock exchange, reorganization or other similar transaction that results in all of the Corporation’s stockholders having the right to exchange their shares of Common Stock of the Corporation for cash, securities or other property.

Section 12.4     Solely for purposes of this Article XII, the following terms shall have the meanings specified below:

“Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.

“Closing Date” shall have the meaning given in the Business Combination Agreement.

“Lock-up Period” shall mean the period beginning on the Closing Date and ending three (3) months after the Closing Date.

“Locked-up Holder” shall mean the holders of Lock-up Shares.

“Lock-up Shares” shall mean (i) any shares of Common Stock Beneficially Owned by the Directional Equityholders, the Eldridge Equityholders and the Sponsor Equityholders (together, the “SPAC Holders”), other than the Common Stock received in connection with the PIPE Investment (as defined in the Business Combination Agreement), (ii) any warrants Beneficially Owned by the SPAC Holders that are exercisable for shares of Common Stock and the shares underlying such warrants, (iii) any shares of Common Stock Beneficially Owned by the former stockholders of Epic Aero, Inc. (the “Company Holders”) and (iv) any warrants Beneficially Owned by the Company Holders that are exercisable for shares of Common Stock and the shares underlying such warrants. .

“Permitted Transferees” shall have the meaning specified in Section 12.2.

“Transfer” means the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).

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EX-99.1

Exhibit 99.1 

Flexjet, a Global Leader in Subscription-Based Private Aviation,

to Become a Public Company Via Business Combination with Horizon Acquisition Corporation II

– Flexjet has entered into a business combination agreement with Horizon Acquisition Corporation II (“Horizon”) (NYSE: HZON); the combined company is expected to trade on the NYSE

– Flexjet’s unique platform provides Fractional Jet Ownership; Private Jet Leasing; Jet Cards; On-Demand Charter and Full Ownership to a highly loyal and growing clientele

– Multi-decade track record of recurring profitable growth with projected estimated 2022 revenue of $2.3 billion, and estimated 2022 Adjusted Management EBITDA of $288 million*

– Transaction implies a pro forma enterprise value for Flexjet of approximately $3.1 billion and is anticipated to close in the second quarter of 2023

– Transaction proceeds are expected to fund fleet, program, and geographic expansion, as well as significant infrastructure expansion, including maintenance support facilities and private terminals

– World-class management team with 40+ years of industry experience and proven track record for driving innovation and growth through focused financial discipline and capital stewardship.

CLEVELAND & GREENWICH, CONN. – October 11, 2022 – Flexjet, Inc. (the “Company”), a global leader in subscription-based private aviation, and Horizon Acquisition Corporation II (“Horizon”) (NYSE: HZON), a publicly traded special purpose acquisition company, announced today a definitive business combination agreement that will result in Flexjet becoming a publicly listed company. Upon the closing of the transaction, Flexjet is expected to be listed on the NYSE under the ticker symbol “FXJ”.

Flexjet is a global leader in the private aviation sector with a full breadth of market offerings that reach private jet users through various branded storefronts that target specific private flying needs. These storefronts include: Flexjet, which focuses on fractional jet ownership and leasing; Sentient Jet, which focuses on jet cards; FXAIR and PrivateFly, which offer on-demand charter programs; as well as Sirio, which focuses on full aircraft ownership.

The Company’s subscription-based recurring revenue model provides the basis for predictable revenue and cash flow. This subscription-based recurring revenue comes from a large, committed customer base of ultra-high-net-worth individuals and Fortune 500 corporations through approximately 10,000 committed contracts. Flexjet’s customers are highly loyal, demonstrated through a 97% retention rate and long-tenured relationships. Over 35% of Flexjet’s fractional customers have been with the Company for more than 10 years and 55% have been with the Company for more than five years.

For over 25 years, Flexjet has set the standard in private aviation with exceptional service and award-winning safety programs, providing its loyal and growing customer base with precise, efficient, and personalized experiences on every trip. Today, the Company delivers unrivaled travel experiences with a fleet of over 250 aircraft and helicopters and a global aviation infrastructure network. The Company’s unique pilot operating model referred to as “Dedicated Crewing” is one that assigns pilots to one specific airplane N-number. This provides an extremely comfortable and safe environment for the Company’s flight crews and the familiarity with their aircraft increases dispatch reliability over similar aircraft not flown with dedicated crews. In conjunction with its dedicated crews, Flexjet has made a commitment to maintaining the highest compensation among its pilot peer group as well as attractive work rules, making Flexjet an employer of choice and reducing pilot attrition during an extremely competitive pilot hiring environment. Flexjet’s average pilot new hire has more than twice the flight hour minimum required for application and 36% of our pilots have been with the Company for more than 15 years.

Flexjet’s distinctive business model, innovative and unique service delivery, proven subscription-based model with consistent profitability, and world-class management team, set it apart from its private aviation industry peers. The Company’s global reach consists of 3,100 employees, including 1,000 nonunion pilots and 450 licensed maintenance technicians across nine office locations in the United States, United Kingdom, and Italy.

Flexjet’s maintenance infrastructure and capabilities are the largest of any private aircraft operator and are a foundational element to all aircraft operations. Competent, timely and coordinated servicing has a crucial impact on fleet readiness and dispatch availability. Flexjet achieves this through a network of 20 mobile maintenance support units that are based throughout the United States and a network of partner facilities across the globe. This unique and innovative investment in one of the most robust maintenance infrastructure networks in the industry ensures consistent and exemplary service and safety, and the integrity of key revenue streams through a relentless focus on aircraft dispatch reliability.

Management Commentary

“Having capital and currency will position us to expand market share at an accelerated pace in an opportunistic environment,” said Kenneth Ricci, Chairman of Flexjet. “We will parlay our existing profitability and use that as a launch pad to accelerate our growth into the next chapter. We are making this decision at a time when we believe the marketplace is expanding at a more aggressive rate. Additionally, the collective infrastructure necessary to operate this model would be very difficult to replicate. Accumulating the aircraft, customer base, global infrastructure, technology, and most importantly, the culture, would take years, if not decades.”

Continued Ricci, “We place a tremendous focus on capital deployment and return on invested capital, and we have an extremely talented management team that has built this company in a very capital-efficient way. We have the infrastructure, we have tremendous depth and commitment from our employee group, and we have a vision.”

“Flexjet’s global presence, aircraft network, and proprietary technology have established the Company as a category leader in private aviation. Eldridge has a long-tenured partnership with this world-class management team and believe that the scale and breadth of Flexjet’s solutions will enable it to continue to capture share in a large and accelerating market,” said Todd Boehly, CEO, CFO and Chairman of Horizon. “I’ve known Kenn and the team for nearly a decade, and their ability to profitably grow Flexjet to what is estimated to be over $2 billion in revenue through an unrivaled product offering and desirable subscription-based business model sets the team apart. We believe this transaction provides Flexjet with ample capital to execute Flexjet’s long-term vision, the ability to continue to serve its loyal customer base, and positions the Company for success in the public markets.”

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Transaction Overview

The transaction values the combined company at a pro forma enterprise value of $3.1 billion, representing 10.8x projected 2022 Adjusted Management EBITDA of approximately $288 million. The majority of proceeds in the business combination are expected to be held on the Company’s balance sheet.

The transaction is backstopped with an up to $300 million common equity capital commitment from Eldridge Industries (an affiliate of Horizon’s sponsor) and Horizon’s sponsor, which consists of $155 million in non-redemption agreements and an up to $145 million redemption back-stop. Upon the closing of the transaction and assuming the full redemption back-stop is utilized, existing Flexjet shareholders (which includes affiliates of Eldridge Industries who are current investors in Flexjet) are expected to own 89% of the combined company. In the event there are fewer redemptions from Horizon’s trust account, such ownership percentage would be reduced by existing Horizon public shareholders.

The boards of directors for both Flexjet and Horizon have approved the proposed business combination, which is expected to be completed in the second quarter of 2023, subject to shareholder approvals and other customary closing conditions, as well as successful completion of the pending solicitation of shareholders to extend Horizon’s period to complete a business combination transaction.

Investor Conference Call and Webcast

Flexjet and Horizon will host a joint investor conference call to discuss the business and the proposed transaction today, October 11, 2022, at 8:30 a.m. ET.

To listen to the conference call via telephone, dial (877) 269-7751 (U.S.) or (201) 389-0908 (international callers/U.S. toll) and enter the conference ID number 13733295. To listen to the webcast, please click here. A webcast replay will be available for one year. A telephone replay will be available until Tuesday, October 25, 2022 at (844) 512-2921 using the conference ID number 13733295.

For Investor Relations, including a copy of an investor presentation as filed with the SEC, please visit the Flexjet website at https://investors.flexjet.com or the SEC’s website for Horizon’s filings at https://www.sec.gov/edgar/browse/?CIK=1821788&owner=exclude.

Advisors

Credit Suisse Securities (USA) LLC served as lead financial and capital markets advisor, Deutsche Bank Securities Inc. served as capital markets advisor and RBC Capital Markets, LLC served as financial and capital markets advisor to Horizon. Houlihan Lokey Capital, Inc. served as financial advisor to a special committee of independent directors of the Board of Directors of Horizon.

White & Case LLP is serving as legal advisor to Flexjet, Sidley Austin LLP is serving as legal advisor to Horizon, Skadden, Arps, Slate, Meagher & Flom LLP is serving as legal counsel to Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and RBC Capital Markets, LLC and Sullivan & Cromwell LLP is serving as legal counsel to Houlihan Lokey Capital, Inc.

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About Flexjet

Flexjet, Inc. reaches private jet users through various storefronts that include Flexjet, Sentient Jet, FXAIR, PrivateFly, and Sirio. Focusing on fractional jet ownership and leasing, jet cards, on-demand charter programs, and full aircraft ownership, each storefront has a unique business model and go-to-market strategy. Flexjet’s U.S. fractional aircraft program is the first in the world to be recognized as achieving the Air Charter Safety Foundation’s Industry Audit Standard, is the first and only company to be honored with 22 FAA Diamond Awards for Excellence, upholds an ARG/US Platinum Safety Rating, received a 4AIR Bronze Sustainability Rating and is IS-BAO compliant at Level 2. In Europe, Flexjet is compliant with IS-BAO, is a Wyvern Wingman Certified Operator and holds a 4AIR Silver Sustainability Rating. In 2015, Flexjet introduced Red Label by Flexjet, which features the most modern fleet in the industry, flight crews dedicated to a single aircraft and the LXi Cabin Collection of interiors. To date, Flexjet’s fleet in the U.S. includes the Embraer Phenom 300 and Praetor 500, the Bombardier Challenger 350, and the Gulfstream G450 and G650. Flexjet’s European fleet includes the Embraer Praetor 600 and the Gulfstream G650. Flexjet’s helicopter division sells fractional, lease, and on-demand charter access to its fleet of owned and operated Sikorsky S-76 helicopters serving locations throughout the northeastern United States, United Kingdom and Florida. Flexjet is a member of the Directional Aviation family of companies. For more details on innovative programs and flexible offerings, visit www.flexjet.com or follow us on Twitter @Flexjet and on Instagram @FlexjetLLC.

About Horizon Acquisition Corporation II

Horizon Acquisition Corporation II is a blank check company incorporated for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination with one or more businesses. Horizon is sponsored by Horizon Sponsor LLC, an affiliate of Eldridge Industries, LLC (“Eldridge”). Horizon is led by Todd L. Boehly, the Co-founder, Chairman and Chief Executive Officer of Eldridge.  Horizon’s securities are traded on the New York Stock Exchange (the “NYSE”) under the ticker symbols HZON, HZON WS and HZON.U. Learn more at https://www.horizonacquisitioncorp-ii.com/

Additional Information and Where to Find It

In connection with the Business Combination, Horizon and Flexjet intend to prepare, and Flexjet intends to file with the SEC, a Registration Statement on Form S-4 (the “Registration Statement”), and Horizon and Flexjet intend to prepare, and Horizon intends to file with the SEC, a preliminary proxy statement/prospectus and, when available, a definitive proxy statement and final prospectus. When available, Horizon will mail the definitive proxy statement/prospectus and other relevant documents to its shareholders as of a record date to be established for voting on the Business Combination. This communication is not a substitute for the Registration Statement, the definitive proxy statement/prospectus or any other document that Horizon will send to its shareholders in connection with the Business Combination. Investors and security holders of Horizon are advised to read, when available, the preliminary proxy statement/prospectus in connection with Horizon’s solicitation of proxies for its extraordinary general meeting of shareholders to be held to approve the Business Combination (and related matters) and general amendments thereto and the definitive proxy statement/prospectus because the proxy statement/prospectus will contain important information about the Business Combination and the parties to the Business Combination.

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Copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed by Horizon or Flexjet with the SEC may be obtained, once available, free of charge at the SEC’s website at www.sec.gov.

Forward Looking Statements

Certain statements made in this press release and the documents incorporated by reference herein are “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements can be identified by words such as: “target”, “believe”, “expect”, “will”, “shall”, “may”, “anticipate”, “estimate”, “would”, “positioned”, “future”, “forecast”, “intend”, “plan”, “project”, “outlook” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Examples of forward-looking statements include, among others, statements made in this press release regarding the proposed transactions contemplated by the Business Combination agreement, including the benefits of the Business Combination, integration plans, expected synergies and revenue opportunities, anticipated future financial and operating performance and results, including estimates for growth, the expected management and governance of the combined company, and the expected timing of the Business Combination.

Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based only on Horizon’s and the Company’s managements’ current beliefs, expectations and assumptions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict and many of which are outside of our control. Actual results and outcomes may differ materially from those indicated in the forward-looking statements. Therefore, you should not rely on any of these forward-looking statements.

Important factors that could cause actual results and outcomes to differ materially from those indicated in the forward-looking statements include, among others, the following: (1) the occurrence of any event, change, or other circumstances that could give rise to the termination of the Business Combination agreement; (2) the outcome of any legal proceedings that may be instituted against Horizon or Flexjet following the announcement of the Business Combination agreement and the transactions contemplated therein; (3) the inability to complete the proposed Business Combination, including due to failure to obtain approval of the stockholders of Horizon and the Company, certain regulatory approvals, or satisfy other conditions to closing in the business combination agreement; (4) the occurrence of any event, change, or other circumstance that could give rise to the termination of the Business Combination agreement or could otherwise cause the transaction to fail to close; (5) the failure to meet the minimum cash requirement of the Business Combination agreement due to Horizon stockholder redemptions and the failure to obtain replacement financing; (6) the inability to complete a concurrent PIPE Investment in connection with the Business Combination; (7) the failure to meet projected development and production targets; (8) the inability to obtain or maintain the listing of Flexjet’s shares of common stock on The New York Stock Exchange following the proposed Business Combination; (9) the risk that the proposed Business Combination disrupts current plans and operations as a result of the announcement and consummation of the proposed Business Combination; (10) the ability to recognize the anticipated benefits of the proposed Business Combination, which may be affected by, among other things, competition, the ability of Horizon and Flexjet to each grow and manage growth profitably, and retain its key employees; (11) costs related to the proposed Business Combination; (12) changes in applicable laws or regulations; (13) the possibility that Horizon or the company may be adversely affected by other economic, business, and/or competitive factors; (14) risks relating to the uncertainty of the projected financial information with respect to the Company; (15) risks related to the organic and inorganic growth of the Company’s business and the timing of expected business milestones; (16) the amount of redemption requests made by Horizon’s stockholders; (17) actual or potential conflicts of interest of Horizon’s stockholders and other related parties as a result of certain relationships and transactions with Flexjet and Horizon, including significant ownership interests and business relationships; (18) members of management of Epic Aero, Inc. and their affiliated entities and Eldridge and its affiliates (including Sponsor) will control Flexjet following the consummation of the Business Combination, and their interests may conflict with Flexjet’s or its public stockholders, and such persons will be able to determine the composition of Flexjet’s board of directors and actions requiring stockholder approval, including a sale of Flexjet (including in an unsolicited transaction, which they will be able to block); (19) Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and RBC Capital Markets, LLC have in the past had, and may in the future have, engagements with Eldridge and its affiliated entities and (20) other risks and uncertainties indicated from time to time in the final prospectus of Horizon for its initial public offering dated March 15, 2021 filed with the SEC and the Registration Statement on Form S-1, that includes a preliminary proxy statement/prospectus, and when available, a definitive proxy statement and final prospectus relating to the proposed Business Combination, including those under “Risk Factors” therein, and in Horizon’s other filings with the SEC. Horizon cautions that the foregoing list of factors is not exclusive.

5 

Horizon and Flexjet caution readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Horizon and Flexjet do not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in their expectations or any change in events, conditions, or circumstances on which any such statement is based, whether as a result of new information, future events, or otherwise, except as may be required by applicable law. None of Horizon and Flexjet gives any assurance that any of Horizon or Flexjet will achieve its expectations.

Participants in the Solicitation

Horizon and its directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Horizon’s shareholders in connection with the Business Combination. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of Horizon’s shareholders in connection with the Business Combination will be in the Registration Statement, including a proxy statement/prospectus, when it is filed with the SEC. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of Horizon’s directors and officers in Horizon’s filings with the SEC and such information will also be in the Registration Statement to be filed with the SEC, which will include the proxy statement/prospectus of Horizon for the Business Combination. These documents can be obtained free of charge at the SEC’s website (www.sec.gov).

Flexjet and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of Horizon in connection with the Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed Business Combination will be included in the proxy statement/prospectus of the Business Combination when available.

6 

Projected Financial Information

This press release contains certain financial forecast information of Flexjet. Such financial forecast information constitutes forward-looking information, and is for illustrative purposes only and should not be relied upon as necessarily being indicative of future results. The assumptions and estimates underlying such financial forecast information are inherently uncertain and are subject to a wide variety of significant business, economic, competitive and other risks and uncertainties. See “Forward-Looking Statements” above. Actual results may differ materially from the results contemplated by the financial forecast information contained in this press release and the inclusion of such information in this press release should not be regarded as a representation by any person that the results reflected in such forecasts will be achieved. Neither the independent auditors of Horizon nor the independent registered public accounting firm of the Company has audited, reviewed, compiled or performed any procedures with respect to the projections for their inclusion in this press release, and accordingly, neither of them expressed an opinion or provided any other form assurance with respect thereto for the purpose of this press release.

* About Non-GAAP Financial Measures

Adjusted Management EBITDA has not been prepared in accordance with United States generally accepted accounting principles (“GAAP”). This non-GAAP measure is an addition to, and not a substitute for or superior to, measures of financial performance prepared in accordance with GAAP and should not be considered as an alternative to revenue, operating income, profit before tax, net income or any other performance measures derived in accordance with GAAP. A reconciliation of this projected non-GAAP financial measure has not been provided and is unable to be provided without unreasonable effort because certain items excluded from this non-GAAP financial measure such as charges related to stock-based compensation expenses and related tax effects, including non-recurring income tax adjustments, cannot be reasonably calculated or predicted at this time.

The Company and Horizon believe this non-GAAP measure of financial results, including on a forward-looking basis, provide useful information to management and investors regarding certain financial and business trends relating to Company’s financial condition and results of operations. The Company’s management uses this non-GAAP measure for trend analyses and for budgeting and planning purposes. The Company and Horizon believe that the use of this non-GAAP financial measure provides an additional tool for investors to use in evaluating projected operating results and trends in and in comparing Company’s financial measures with other similar companies, many of which present similar non-GAAP financial measures to investors. Management of the Company does not consider this non-GAAP measure in isolation or as an alternative to financial measures determined in accordance with GAAP.

However, there are a number of limitations related to the use of these non-GAAP measures and their nearest GAAP equivalents. For example, other companies may calculate non-GAAP measures differently, or may use other measures to calculate their financial performance, and therefore the Company’s non-GAAP measures may not be directly comparable to similarly titled measures of other companies.

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The Company defines Adjusted Management EBITDA as EBITDA (net income (loss) before (a) interest expense (income), (b) income tax expense (benefit) and (c) depreciation and amortization), as further adjusted to exclude (1) loss / gain on aircraft sale, (2) management fees, (3) other expense / (income), (4) fractional share margin adjustment per credit agreement, (5) sale leaseback adjustment per credit agreement, (6) Sentient jet pricing policy adjustment and (7) customer concessions adjustment. Management does not consider these items to be indicative of the Company’s core operating results.

Contacts

Flexjet Investor Relations

IRComms@Flexjet.com

Flexjet Public Relations

Nicholas Parmelee

The Hubbell Group, Inc.

216.406.5602

nparmelee@hubbellgroup.com

Horizon Acquisition Corporation II

Nadia Damouni

Prosek Partners

646.818.9217

ndamouni@prosek.com

8 

EX-99.2

Exhibit 99.2

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EX-99.3

Exhibit 99.3

Flexjet Business Combination with Horizon Acquisition Corporation II

Investor Conference Call Transcript

10/11/2022

Operator

Good morning, and welcome to the investor conference call relating to the proposed business combination between Flexjet and Horizon Acquisition Corporation II.

Today’s speakers include, Todd Boehly, CEO, CFO and Chairman of Horizon Acquisition Corporation II, and Co-founder, Chairman and Chief Executive Officer of Eldridge, Kenn Ricci, Chairman of Flexjet, and Michael Rossi, Chief Financial Officer of Flexjet.

I would like to remind everyone that this call contains forward-looking statements including, but not limited to, statements relating to Flexjet and Horizon’s expectations or predictions on their respective financial and business performance and conditions, expectations or assumptions in consummating the proposed business combination between the parties, and future Flexjet product development and performance. As stated in the press release issued today, Horizon will file a current report on Form 8-K with the Securities and Exchange Commission, which will include an investor presentation that we encourage you to read which contains an overview of the transaction and important disclaimers regarding forward looking statements and other matters as well as certain risk factors, all of which also apply to today’s conference call. In addition, this call will contain some information relating to the economics and ownership levels in the transaction discussed that depends on various assumptions, including assumptions relating to redemptions by Horizon’s public stockholders and levels of PIPE subscriptions.

I will now turn the call over to Todd Boehly, CEO, CFO and Chairman of Horizon. Please go ahead.

Todd Boehly – Chief Executive Officer, Chief Financial Officer and Chairman of Horizon Acquisition Corporation II, and Co-founder, Chairman and Chief Executive Officer of Eldridge

Thank you for joining us today. I am Todd Boehly, Chairman, CEO, and CFO of Horizon Acquisition Corp II as well as Co-founder, Chairman, and CEO of Eldridge. We are excited to take you through the rationale for our combination.

At Eldridge and Horizon, our mission is to provide management teams the capital and resources they need to execute their strategic plans and grow significant businesses within respective market opportunities. Our equity capital comes with perspective, relationships and a formidable network of supported businesses with a shared commitment to growth.

Eldridge has a storied partnership with Flexjet, and we believe this business combination capitalizes on several macro trends, including the tenet that physical and social mobility provides consumers with increased flexibility and efficiency.

I want to underscore a few reasons why we believe Flexjet is poised for success in the public markets after the years of accomplishment we jointly experienced as one of Eldridge’s partner companies.

First, Flexjet has an extensive track record. The company’s global footprint, aircraft network, and proprietary technology have established them as a category leader in private aviation. This creates a significant competitive advantage given Flexjet’s global aviation infrastructure network.

Second, unlike many players in this space, Flexjet is profitable and generating meaningful topline and bottom-line growth. Based on management’s estimated view of the rest of 2022, the company’s 3-year CAGR is nearly 20% for revenue growth and 44% on an adjusted EBITDA basis. In our view, Flexjet has the resources and opportunities to continue an exceptional pace of growth given the stability of its subscription-based, recurring-revenue model and continued demand for safe travel solutions in a post-pandemic world. We believe businesses and Flexjet’s other stakeholders will continue to be willing to pay a premium for optimal travel experiences, and Flexjet is primed to capture that opportunity.

Third, Flexjet has established a reputation of innovation providing the ultimate personalization to passengers, and this breeds the highest standard of loyalty with customers. Flexjet is a destination of choice for the best pilots and provides the industry’s highest pilot compensation program.

In addition to its desirable, subscription-based revenue model, Flexjet prioritizes asset efficient capacity. This helps it manage balance sheet risk. The fractional sale customers provide working capital to refresh the Flexjet fleet on an ongoing basis, and the fractional lease customers pay lease fees to cover holding costs. We believe this model positions the company for long-term success and gives the company more flexibility to focus on customer satisfaction, which remains at the forefront.

The transaction provides Flexjet with ample capital to continue its already stellar growth trajectory.

In terms of alignment, we are investing several hundred million dollars. Eldridge and affiliates are rolling 100% of their equity with a shared excitement about the future. And on top of that, Horizon’s sponsor, which is already a significant cash investor in Horizon, has agreed to take a significant reduction of its promote to take it in the form of warrants so that its interests are aligned with the goal of long-term value creation.

Lastly, I want to highlight the Flexjet management team. Both Kenn Ricci and Michael Rossi have been day-one partners with Eldridge since our initial investment in Flexjet nearly a decade ago. They have built a platform for the long term and this introduction to the public market will mark the beginning of the next chapter for the company’s strategic roadmap. I could not be more confident in the management team of Flexjet:

· They are a proven team with a history of success;

· They are industry experts, each having over 40 years of aviation experience;

· and they are ready for this next opportunity as a public company.

With that, let me hand it over to Kenn to talk more about the team, their value proposition, and their vision. Kenn?

Kenneth Ricci, Chairman of Flexjet

Thank you, Todd. And good morning to everyone.

Let me start with an overview of Flexjet and our unique approach to the private aviation market and growth opportunities, after that to be followed by my partner of 40 years, Mike Rossi, giving an overview of the financials and a summary of the transaction.

Our Company has a rich history, with more than 25 years of operational experience in the private aviation industry. We have a highly tenured management team with over four decades of experience in this industry who have matched innovation, entrepreneurship, and ingenuity with focused financial discipline and capital stewardship.

We reach private jet users through various storefronts that target a specific user profile of private flying needs. These storefronts: FLEXJET, SENTIENT JET, FXAIR, PRIVATEFLY, AND SIRIO, each have unique sales attributes, aircraft fulfillment plans and GO-TO-MARKET strategies. Customer demand is seamlessly revenue managed and dispatched through our fleet of over 250 aircraft and helicopters plus 1,700 certified partner aircraft.

The distinctive feature of our business is its subscription-based recurring revenue model that provides predictable revenue and cash flow which leads to efficient capital deployment. Subscription revenue is provided by a large base of over 10,000 highly loyal and committed Ultra High Net Worth Individuals and major Fortune 500 corporations. We benefit from a 97% customer retention rate with over 35% of our fractional customers having a tenure of over ten years and another 55% have been with Flexjet for over 5 years.

The collective infrastructure necessary to operate this model would be very difficult to replicate. Accumulating the aircraft, the customer base, global infrastructure, technology, and most importantly, the culture, would take years, if not decades.

The infrastructure begins with our fleet of 250+ aircraft and helicopters. We have world-class operations across nine office locations in the US, the United Kingdom, and Italy with our global operations center in Cleveland, Ohio. We employ 3,100 employees, including 1,000 nonunion pilots and 450 licensed maintenance technicians. We have seven private customer terminals at our most popular destinations with three more set to open shortly. We employ a team of world-class customer service members and can provide scheduling capabilities in six native languages.

Our maintenance infrastructure and capabilities are the largest of any private aircraft operator and we have the capacity to provide over 600,000 maintenance manhours a year. Maintenance is the foundation of all aircraft operations as competent timely and coordinated servicing can have a crucial impact on the fleet’s readiness and dispatch availability. In addition, we have 20 mobile maintenance support units that are based throughout the country to ensure our aircraft can be serviced during any hour of the day, a great benefit over third-party maintenance support structure typically utilized elsewhere in our industry.

We have a unique Pilot Operating model referred to as Dedicated Crewing that assigns pilots to one specific airplane N-number. This provides an extremely comfortable and safe environment for our flight crews and the familiarity with “their” aircraft increases dispatch availability by over 7% versus similar aircraft not flown with dedicated crews. In conjunction with our dedicated crews, Flexjet has made the commitment to maintaining the highest compensation among its pilot peer group, making Flexjet an employer of choice and reducing pilot attrition during an extremely competitive pilot hiring environment. In fact, our average pilot new hire has more than twice the flight hour minimum required for application and 36% of our pilots have been with the company for more than 15 years.

Dedicated Crewing is one of the primary features of our Proprietary Red Label program, which is unique in the Fractional industry and strives to create a distinguished bespoke elite segment of the fractional product offerings.

Our technology infrastructure is customized to our service delivery platform and state-of-the-art systems within our uniquely designed Operations Control Center. These systems allow us to optimize our fleet utilization to maximize economic upside. We have the ability to create demand through our proprietary E-Upgrade program, which increases fleet utilization rates and margins. And, we have the ability to migrate demand to our diverse fleet network to provide for that demand.

Flexjet is well positioned to profitably capture new demand from the rapidly consolidating private aviation market. Over the last three years through 2021, Flexjet has experienced 21% increase in market share against its primary competitor.

We have seen new entrants enter the private aviation space – particularly a younger demographic set than previously seen in the industry, as well as customers reprioritizing their use of capital toward private jet travel. We are also seeing customers elect to purchase large cabin aircraft at the start of their subscription with Flexjet, as opposed to migrating up to large aircraft over a longer duration of their relationship with us. From 2019 to 2022, we have seen a 60% increase in revenue hours, and our committed hours for 2022 are expected to number over 193,000, a 60% increase since 2019.

It is estimated that the overall total addressable market potential for private aviation in the United States is upwards of $33 billion. And Flexjet has never been in a better position to take advantage of these opportunities and grow market share. We have the infrastructure; we have a tremendous depth and commitment from our employee group; we place a tremendous focus on capital deployment and return on invested capital. And, we have extremely talented management that has built this company in a very capital-efficient way. Our vision is to raise capital, maintain our leadership, maintain our vision, and preserve our culture.

With that, I would like to turn the call over to Mike Rossi, our Chief Financial Officer. Mike and I have worked together for 40 years and have really built this business together. Mike is going to take you through a closer look at our historical financials and an overview of the transaction.

Mike Rossi, Chief Financial Officer of Flexjet

Thank you, Kenn.

Good Morning, everyone.

I am now going to address the financial highlights of Flexjet.

Our revenues from 2019-2021 grew at a 13.3% compound annual growth rate, supported by our highly recurring contracted revenue and fueled by growth in private aviation. 2021 revenue increased 36.5% to $1.7 billion compared to 2020 revenue of $1.3 billion. We project revenues of $2.3 billion in 2022, representing a 33.6% increase from 2021.

Our strong revenue performance has been driven by sustained growth in our fleet size and customer base. In 2022, we are projecting total revenue hours to grow by 13.1% to 216,000 hours compared to 191,000 hours in 2021 and 134,000 hours in 2019, reflecting a forecasted compound annual growth rate of 17.3% over the four-year period. This growth is substantiated by an increase in our committed hours from 97,000 hours in 2019 to a projection of 136,000 hours by the end of 2022, representing a 12% forecasted compound annual growth rate over the same period.

The increase in our total revenue hours and committed hours are supported by significant growth in our fleet. Since 2019, we have expanded our fleet from 145 aircraft to 254 aircraft expected by the end of 2022. The continued increase in demand for our diverse set of product offerings and market-leading solutions has supported our strong revenue trajectory and has captured significant market share, which has resulted in continued profitable growth.

From an adjusted EBITDA standpoint, we achieved for the period of 2019 to 2021 compound annual growth rate of 37.7%. 2021 adjusted EBITDA increased 64.3% to $184 million, compared to 2020 adjusted EBITDA of $112 million. We project $288 million of adjusted EBITDA in 2022, an increase of 56.5% from 2021. The growth in our recurring contracted revenues and committed hours, combined with higher customer utilization rates, have generated year over year adjusted EBITDA margin expansion since 2019.

Moving to summary transaction details.

Horizon, which currently holds over $500 million of cash in trust, will combine with Flexjet. The pro forma implied enterprise value of the combined company is approximately $3.1 billion.

The transaction is backstopped with an up to $300 million capital commitment from Eldridge, which consists of $155 million in committed non-redemption agreements and an up to $145 million redemption backstop at $10.00 per share less a 3% commitment fee. The majority of these proceeds will be held on balance sheet, with $80 million used to redeem existing preferred shares. Eldridge will not receive any secondary proceeds as part of this transaction. Flexjet may obtain additional capital from private investors in connection with this transaction.

In addition, substantially all of the founder shares currently held by Horizon’s sponsor will be converted into warrants that will be split evenly with Directional Aviation, which is controlled by Flexjet management. There will be 40 million newly issued warrants in total, with half struck at $10.00 and half struck at $15.00.

Assuming a minimum of committed equity proceeds of $300 million from Eldridge and the redemption of approximately $370 million from Horizon’s trust account, Flexjet’s existing equity security holders, including Eldridge, are expected to hold 89% of the issued and outstanding shares of common stock immediately following the consummation of the merger, with shares represented by Eldridge’s committed equity holding the balance. In the event there are fewer redemptions from Horizon’s trust account, those ownership percentages would be reduced by existing public shareholders.

Operator

Thank you. This concludes today’s conference call. You may now disconnect.