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:
| · | 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 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. |
* 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
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