Subscription Agreement, entered into as of December 21, 2023, by and among Global Crossing Airlines Group Inc. Global Crossing Airlines Inc., and the subscribers named therein

Exhibit 10.4

SUBSCRIPTION AGREEMENT

This SUBSCRIPTION AGREEMENT (this “Agreement”) is entered into on December 21, 2023, by and among Global Crossing Airlines Group Inc., a Delaware corporation (the “Issuer”), Global Crossing Airlines Inc., a Delaware corporation (the “GCA”), Global Crossing Airlines Operations LLC, a Florida limited liability company (“GCAO”), GlobalX Air Tours LLC, a Florida limited liability company (“GAT”), GlobalX Travel Technologies, Inc., a Delaware corporation (“GTT”), Global Crossing Airlines Holdings, Inc., a Delaware corporation (“GCAH”), Charter Air Solutions, LLC, Montana limited liability company (“CAR”) and UrbanX Air Mobility, Inc., a Delaware corporation (“UAM,” together with CGA, GCAO, GAT, GTT, GCAH and CAR, the “Guarantors” and together with the Issuer, the “Note Parties”), and the undersigned subscribers (each a “Subscriber”) acting severally, and not jointly. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture (as defined below). References herein to “Subscriber” shall be deemed to refer to each undersigned Subscriber as if each Subscriber party hereto had executed a separate subscription agreement substantially identical to this Subscription Agreement.

WHEREAS, the Issuer, the Guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and Collateral Agent (the “Trustee”), are parties to the certain Indenture, previously entered into on August 2, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Initial Indenture”);

WHEREAS, Subscriber desires to subscribe for and purchase secured notes (the “Notes”) of and from the Issuer substantially in the form of the Third Supplemental Indenture attached as Annex A hereto or such other form agreed between the Note Parties and the Subscribers (the “Third Supplemental Indenture,” together with the Initial Indenture, the “Indenture”), which is incorporated in and made a part of this Agreement, in an aggregate original principal amount as set forth on Schedule B attached hereto, at 98.25% of such original principal amount, plus accrued interest on the principal amount thereon from and including August 2, 2023 (the “Notes Purchase Price”), and the Issuer desires to issue and sell to each Subscriber the Notes in consideration of the payment of the Notes Purchase Price by or on behalf of such Subscriber to the Issuer; and

WHEREAS, as consideration for the Subscribers entering into this Agreement and the performance of their respective obligations hereunder, the Company desires to issue to the Subscribers a non-cash fee in the form of Warrants (the “Warrants”) substantially in the form of Warrant attached hereto as Annex B, to purchase up to 1,428,736 shares of the Issuer’s common stock, par value $0.001 per share (the “Common Stock”), in the amounts for each Subscriber as set forth on Schedule B attached hereto and at the valuation set forth on Schedule B attached hereto.

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, on the date hereof (the “Closing Date”), each Subscriber hereby agrees, severally and not jointly, to subscribe for and purchase the aggregate original principal amount set forth opposite the name of such Subscriber on Schedule B, and the Issuer hereby agrees to issue and sell to each Subscriber, severally and not jointly, upon the payment by each Subscriber of the applicable Notes Purchase Price to be paid by such Subscriber, the Notes in an aggregate original principal amount and the number of Warrants, in each case as set forth on Schedule B attached hereto opposite its name (such subscription and issuance, the “Subscription”). The Issuer’s obligations under the Notes, including the due and punctual payment of interest, principal and premium, if any, on the Notes, will be guaranteed on a senior secured basis (the “Guarantee”) by each Guarantor. As used herein, the term “Notes” shall include the Guarantee, unless the context otherwise requires.

Section 2. Closing.

(a) The consummation of the Subscription contemplated hereby (the “Closing”) shall occur on the Closing Date, subject to the satisfaction or waiver of the conditions below.

(b) At the time of Closing (the “Closing Time”), the Issuer shall deliver to each Subscriber (i) a physical certificate representing the Notes being purchased by such Subscriber at the Closing and (ii) a physical certificate representing the Warrant being purchased by such Subscriber at the Closing, in each case against payment of the Notes Purchase Price for such Notes therefor by wire transfer of United States dollars in immediately available funds to the account specified by the Issuer.

(c) Subject to Section 4.19 of the Indenture, the Closing shall be subject to the satisfaction or valid waiver by each of the parties hereto of the following conditions:

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Section 3. Representations and Warranties of the Issuer and each Guarantor. The Issuer and each Guarantor, jointly and severally, represents and warrants to Subscriber that:

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Section 4. Subscriber Representations and Warranties. Each Subscriber, jointly and severally, represents and warrants to the Issuer that:

(a) Subscriber (i) is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or formation, and (ii) has the requisite power and authority to enter into and perform its obligations under this Agreement.

(b) This Agreement has been duly executed and delivered by Subscriber, and assuming the due authorization, execution and delivery of the same by the Issuer, this Agreement constitutes the valid and legally binding obligation of Subscriber, enforceable against Subscriber in accordance with its terms, except that the enforcement thereof may be subject to the Enforceability Exception.

(c) The execution and delivery of this Agreement, the purchase of the Notes and the Warrants and the compliance by Subscriber 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 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) the organizational documents of Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency 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 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 Notes and the Warrants.

(d) Subscriber (i) is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) that is also an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) (a “Qualified Institutional Buyer”), (ii) is acquiring the Notes and the Warrants only for its own account and not for the account of others, or if Subscriber is subscribing for the Notes and the Warrants as a fiduciary or agent for one or more investor accounts, each owner of such account is a Qualified Institutional Buyer and

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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 Notes, the Warrants and the Underlying Shares (if any) with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities Act.

(e) Subscriber understands that the Notes, the Warrants and the Underlying Shares (if any) are being offered in a transaction not involving any public offering within the meaning of the Securities Act and that the Notes, the Warrants and the Underlying Shares (if any) have not been registered under the Securities Act or any state securities laws or other applicable securities laws. Subscriber understands that (1) the Notes, the Warrants and the Underlying Shares (if any) may not be offered, resold, transferred, pledged or otherwise disposed of by Subscriber absent an effective registration statement under the Securities Act, except in accordance with the legend applicable to the Notes, the Warrants and the Underlying Shares (if any), as set forth in the Indenture, (2) the Issuer shall have no obligation to register any such purported sale, transfer or disposition which violates applicable U.S. Securities Laws (as defined below) or other securities laws, and (3) as a result of these transfer restrictions, Subscriber may not be able to readily resell the Notes, the Warrants and the Underlying Shares (if any) and may be required to bear the financial risk of an investment in the Notes, the Warrants and the Underlying Shares (if any) for an indefinite period of time. Subscriber acknowledges and agrees that the Notes, the Warrants and the Underlying Shares (if any) may not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) after one year from the Closing Date and that the ability to rely on Rule 144 for any such disposition may at any time be proscribed by the provisions of Rule 144(i). Subscriber understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Notes, the Warrants and the Underlying Shares (if any). “U.S. Securities Laws” means all applicable securities laws in the United States, all as now enacted or as the same may from time to time be amended, re-enacted or replaced, and the respective regulations, rules, orders, and forms under such laws.

(f) Subscriber understands and agrees that Subscriber is purchasing the Notes, the Warrants and the Underlying Shares (if any) directly from the Issuer. 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 the Issuer, the Placement Agent, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives, any other party to the transaction or any other person or entity, expressly or by implication, other than those representations, warranties, covenants and agreements of the Issuer expressly set forth in this Agreement, and Subscriber hereby represents and warrants that it is relying exclusively on Subscriber’s own sources of information, investment analysis and due diligence (including professional advice Subscriber deems appropriate) with respect to this Subscription of the Notes, the Warrants and the Underlying Shares (if any), and the business, condition (financial and otherwise), management, operations, properties and prospects of the Issuer, including but not limited to all business, legal, regulatory, accounting, credit and tax matters. Subscriber acknowledges that certain information provided to Subscriber 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.

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(g) Subscriber is aware that the sale to it is being made in reliance on a private placement exemption from registration under the Securities Act and Subscriber is acquiring the Notes, the Warrants and the Underlying Shares (if any) for its own account or for an account over which Subscriber exercises sole discretion for another Qualified Institutional Buyer.

(h) In making its decision to purchase the Notes, the Warrants and the Underlying Shares (if any), Subscriber has relied solely upon independent investigation made by Subscriber and the Issuer’s representations and warranties in Section 3. Subscriber acknowledges and agrees that Subscriber has received, and has had an adequate opportunity to review, such information as Subscriber deems necessary in order to make an investment decision with respect to the Notes, the Warrants and the Underlying Shares (if any), including with respect to the Issuer and its Subsidiaries and the transaction. Subscriber represents and agrees that Subscriber and Subscriber’s professional advisor(s), 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 advisor(s), if any, have deemed necessary to make an investment decision with respect to the Notes, the Warrants and the Underlying Shares (if any).

(i) Subscriber became aware of this offering of the Notes, the Warrants and the Underlying Shares (if any) solely by means of direct contact between Subscriber and the Issuer or their respective representatives or affiliates, or by means of contact from any of the Placement Agent, and the Notes, the Warrants and the Underlying Shares (if any) were offered to Subscriber solely by direct contact between Subscriber and the Issuer or their respective representatives or affiliates, or by contact between Subscriber and the Placement Agent. Subscriber did not become aware of this offering of the Notes, the Warrants and the Underlying Shares (if any), nor were the Notes, the Warrants and the Underlying Shares (if any) offered to Subscriber, by any other means, including by any form of general solicitation or general advertising (as such terms are used in Regulation D under the Securities Act).

(j) Subscriber acknowledges that it is aware that there are substantial risks incident to the purchase and ownership of the Notes, the Warrants and the Underlying Shares (if any) and that it is able to fend for itself in the transactions contemplated by this Agreement. 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 Notes, the Warrants and the Underlying Shares (if any), 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. Subscriber acknowledges and agrees that neither the Issuer nor any of its affiliates has provided any tax advice to Subscriber or made any representations or warranties or guarantees to Subscriber regarding the tax treatment of its investment in the Notes, the Warrants and the Underlying Shares (if any).

(k) Subscriber has analyzed and considered the risks of an investment in the Notes, the Warrants and the Underlying Shares (if any) and determined that the Notes, the Warrants and the Underlying Shares (if any) 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 the Issuer. Subscriber acknowledges specifically that a possibility of total loss exists.

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(l) Subscriber understands and agrees that no U.S. federal or state agency has passed upon or endorsed the merits of the offering of the Notes, the Warrants and the Underlying Shares (if any) or made any findings or determination as to the fairness of this investment.

(m) Subscriber is not, and is not owned or controlled by or acting on behalf of (in connection with the transaction 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 none of its investors are Sanctioned Persons and that funds held by Subscriber and used to purchase the Notes and the Warrants are derived from lawful activities. For purposes of this Section, “Sanctioned Person” means at any time any person or entity: (a) listed on any Sanctions-related list of designated or blocked or restricted persons; (b) 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 (including, without limitation, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, Crimea, Cuba, Iran, North Korea and Syria); or (c) majority-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) His Majesty’s Treasury.

(n) 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 transactions provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants that (i) it has not relied on the Issuer or any of its affiliates (the “Transaction Parties”) as the Plan’s fiduciary or for advice, with respect to its decision to acquire and hold the Notes, the Warrants and the Underlying Shares (if any), 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 Notes, the Warrants and the Underlying Shares (if any) and (ii) none of the acquisition, holding and/or transfer or disposition of the Notes, the Warrants and the Underlying Shares (if any) will result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code or any similar law or regulation.

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(o) No broker or finder is entitled to any brokerage or finder’s fee or commission payable by Subscriber solely in connection with the sale of the Notes, the Warrants or Underlying Shares (if any) to Subscriber based on any arrangement entered into by or on behalf of Subscriber.

Section 5. Termination. The obligations of Subscriber hereunder may be terminated by Subscriber in its absolute discretion, by notice given to and received by the Issuer prior to delivery of and payment for the Notes and Warrants if, following the date hereof and prior to that time, (i) trading in securities generally on the NYSE, the NASDAQ, NYSE American or in the over-the-counter market, or trading in any securities of the Issuer on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established or maximum ranges for prices shall have been required on such exchange or such market, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a material disruption in securities settlement, payment or clearance services in the United States or abroad, (iii) a general banking moratorium shall have been declared by Federal or state authorities or any material disruption in commercial banking or securities settlement or clearance services shall have occurred, or (iv) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity, crisis or emergency if, in the judgment of Subscriber, the effect of any such attack, outbreak, escalation, act, declaration, calamity, crisis or emergency, makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Notes and the Warrants.

Section 6. Board Rights. Each Subscriber shall have the same rights and obligations under Section 6 of that certain Subscription Agreement, dated August 2, 2023 (the “Initial Subscription Agreement”), by and among the Issuer, the Guarantors party thereto and the Subscribers party thereto, as if it was a Subscriber under the Initial Subscription Agreement.

Section 7. Indemnity.

(a) The Issuer and each Guarantor agree, jointly and severally, to indemnify and hold harmless, to the extent permitted by law, Subscriber, its directors and officers, employees, and agents, and each person who controls Subscriber (within the meaning of the Securities Act or the Exchange Act) and each affiliate of Subscriber (within the meaning of Rule 405 under the Securities Act) from and against any and all losses, claims, damages, taxes, liabilities and expenses (including, without limitation, any reasonable external attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by (a) any breach of any of the representations, warranties, covenants or agreements made by the Note Parties in this Agreement or in the Note Documents or Warrants to which it is a party, or (b) any action instituted against such Subscriber in any capacity, or any of them or their respective affiliates, by any stockholder of the Issuer who is not an affiliate of such Subscriber, with respect to any of the transactions contemplated by the Note Documents or Warrants (unless such action is primarily based upon a material breach of such Subscriber’s representations, warranties or covenants under the Note Documents or Warrants or any agreements or understandings the Subscriber may have with any such stockholder or any violations by the Subscriber of state or federal securities laws or any conduct by the Subscriber which is finally judicially determined to constitute fraud, gross negligence or willful misconduct).

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(b) Each Subscriber agrees, severally and not jointly, to indemnify and hold harmless the Issuer, Guarantors, each of their respective directors, officers, employees and agents, and each person who controls the Issuer or any Guarantor (within the meaning of the Securities Act or the Exchange Act) and each affiliate of the Issuer against any losses, claims, damages, liabilities and expenses (including, without limitation, reasonable external 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 not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by or on behalf of Subscriber expressly for use therein. In no event shall the liability of Subscriber be greater in amount than the dollar amount of the net proceeds received by Subscriber upon the sale of the Underlying Shares giving rise to such indemnification obligation.

(c) Any person entitled to indemnification herein shall (1) 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 (2) 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.

(d) The 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, employee, agent, affiliate or controlling person of such indemnified party and shall survive the transfer of any Notes or Warrants purchased pursuant to this Agreement and the corresponding Underlying Shares.

(e) If the indemnification provided under this Section 7 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,

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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 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 limitations set forth above, 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 7 from any person who was not guilty of such fraudulent misrepresentation. Any contribution pursuant to this Section 7(e) by any seller of Underlying Shares shall be limited in amount to the amount of net proceeds received by such seller from the sale of such Notes, Warrants or Underlying Shares. 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 Agreement.

Section 8. Investment Unit Treatment. Notwithstanding anything to the contrary contained in this Agreement, the Indenture, the Notes, the Warrants, the Collateral Documents and the other Note Documents, the parties to this Agreement agree that the Note and the Warrant will be treated as an “investment unit” for United States federal income tax purposes.

Section 9. Additional Provisions; Miscellaneous.

(a) All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) when sent by electronic mail, on the date of transmission to such recipient, (iii) one Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), or (iv) four (4) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended recipient at its address or electronic mail address, as applicable, 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 the Issuer and the Placement Agent will rely on the acknowledgments, understandings, agreements, representations and warranties of Subscriber contained in this Agreement. Prior to the Closing, Subscriber agrees to promptly notify the Issuer and the Placement Agent if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of Subscriber set forth herein are no longer accurate in any material respect (other than those acknowledgments, understandings, agreements, representations and warranties qualified by materiality, in which case Subscriber shall notify the Issuer and the Placement Agent if they are no longer accurate in any respect). Subscriber further acknowledges and agrees that the Placement Agent is a third-party beneficiary of the representations and warranties of Subscriber contained in this Agreement. Subscriber acknowledges and agrees that each purchase by Subscriber of Notes and Warrants from the Issuer will constitute a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) by Subscriber as of the time of such purchase. The Issuer acknowledges that Subscriber will rely on the acknowledgments,

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understandings, agreements, representations and warranties contained in this Agreement. Prior to the Closing, the Issuer agrees to promptly notify Subscriber if it becomes aware that any of the acknowledgments, understandings, agreements, representations and warranties of the Issuer set forth herein are no longer accurate in any material respect (other than those acknowledgments, understandings, agreements, representations and warranties qualified by materiality, in which case Subscriber shall notify the Issuer and the Placement Agent if they are no longer accurate in any respect).

(c) Each of the Issuer, Guarantors, the Placement Agent and Subscriber is irrevocably authorized to produce this 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) The Issuer shall pay the out-of-pocket expenses (not to exceed $250,000) of the Subscriber in connection with this Agreement and the transactions contemplated herein, including the fees and expenses of counsel incurred by Subscriber.

(e) Neither this Agreement nor any rights that may accrue to Subscriber hereunder (other than the Notes and the Warrants acquired hereunder and the corresponding Underlying Shares (if any)) may be transferred or assigned. Neither this Agreement nor any rights that may accrue to the Issuer hereunder may be transferred or assigned. Notwithstanding the foregoing, Subscriber may assign its rights and obligations under this 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) or, with the Issuer’s prior written consent, to another person, provided that (i) such assignee(s) agrees in writing to be bound by the terms hereof, and upon such assignment by Subscriber, the assignee(s) shall become Subscriber hereunder and have the rights and obligations and be deemed to make the representations and warranties of Subscriber provided for herein to the extent of such assignment and (ii) no such assignment shall relieve Subscriber of its obligations hereunder if any such assignee fails to perform such obligations.

(f) All the agreements, covenants that by their terms are to be performed following the Closing, representations and warranties made by each party hereto in this Agreement shall survive the Closing.

(g) The Issuer may request from Subscriber such additional information as the Issuer may reasonably deem necessary to evaluate the eligibility of Subscriber to acquire the Notes and the Warrants and to register the Underlying Shares (if any) for resale, and Subscriber shall provide such information as may be reasonably requested on a timely basis. Subscriber acknowledges that subject to the conditions set forth in Section 9(p), the Issuer may file a copy of this Agreement with the SEC as an exhibit to a periodic report of the Issuer or a registration statement of the Issuer.

(h) This Agreement may not be amended, modified or waived except by an instrument in writing, signed by each of the parties hereto; provided, that, Section 4, Section 9(c), this Section 9(h) and Section 9(j) of this Agreement may not be amended, modified or waived in a manner that is material and adverse to the Placement Agent without the prior written consent of the Placement Agent (such consent not to be unreasonably withheld, conditioned or delayed).

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(i) This Agreement, together with the form of Indenture attached hereto, constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, among the parties, with respect to the subject matter hereof.

(j) Except as otherwise provided herein (including the next sentence hereof), this Agreement is intended for the benefit of the parties hereto and their respective affiliates and their respective 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. Except as set forth in Section 9(b), Section 9(c), Section 9(e), Section 9(h), and this Section 9(j), this Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective successor and assigns, and the parties hereto acknowledge that such persons so referenced are third-party beneficiaries of this Agreement for the purposes of, and to the extent of, the rights granted to them, if any, pursuant to the applicable provisions. For the avoidance of doubt, the Placement Agent is an express third-party beneficiary of this Agreement, including without limitation Subscriber’s representations and warranties in Section 4.

(k) The parties hereto acknowledge and agree that (i) this Agreement is being entered into in order to induce the Issuer and each Guarantor to execute and deliver the Indenture, the Notes, the Warrants, the Collateral Documents and the other Note Documents and (ii) 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 and that money or other legal remedies would not be an adequate remedy for such damage. It is accordingly agreed that the parties shall be entitled to equitable relief, including in the form of an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this 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 (i) the Issuer and each Guarantor shall be entitled to specifically enforce Subscriber’s obligations to fund the Notes Purchase Price and the provisions of the Agreement and (ii) the Subscriber shall be entitled to specifically enforce the Issuer and each Guarantor’s obligations to issue and sell the Notes and the Warrants, guarantee the Notes, if applicable, and the provisions of the Agreement, in each case, on the terms and subject to the conditions set forth herein.

(l) [Reserved]

(m) If and when reasonably requested by Subscriber, the Issuer shall furnish as soon as practicable after such request any other information reasonably necessary to enable Subscriber to accurately prepare and file any applicable tax and information returns or reports.

(n) If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this 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 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 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

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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 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 Agreement may be executed and delivered in one or more counterparts (including by facsimile or 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 Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the principles of conflicts of laws that would otherwise require the application of the law of any other state.

(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 AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, 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 AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

(s) This Agreement may only be enforced against, and any claim, action, suit or other legal proceeding 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 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 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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(t) The Issuer shall, by 9:00 a.m., New York City time, on the Business Day immediately following the date of this Agreement, issue one or more press releases or file with the SEC a Current Report on Form 8-K (the “Disclosure Document”) disclosing all material terms of the transactions contemplated hereby and the transaction. Upon the issuance of the Disclosure Document, to the Issuer’s knowledge, Subscriber shall not be in possession of any material, nonpublic information regarding the Issuer received from the Issuer or any of its officers, directors, or 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 Issuer, the Placement Agent, the Issuer or any of their respective affiliates in connection with the transaction. Notwithstanding anything in this Agreement to the contrary, the Issuer (i) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any press release, without the prior written consent of Subscriber or unless as required by law, and (ii) shall not publicly disclose the name of Subscriber or any of its affiliates or advisers, or include the name of Subscriber or any of its affiliates or advisers in any filing with the SEC or any regulatory agency or trading market, without the prior written consent of Subscriber, except as required by the U.S. federal or state securities law, regulatory agency. Subscriber will promptly provide any information reasonably requested by the Issuer or any of its affiliates for any regulatory application or filing made or approval sought in connection with the transaction contemplated hereby (including filings with the SEC).

Section 10. Post-Closing Obligations. The Note Parties shall deliver each of the documents, instruments and agreements and take each of the actions set forth on Schedule C within the time periods set forth on such Schedule.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, each of the Issuer, Guarantors and Subscriber has executed or caused this Agreement to be executed by its duly authorized representative as of the date first set forth above.

[Signature Page to Subscription Agreement]

Address for Notices:

[Signature Page to Subscription Agreement]

[Signature Page to Subscription Agreement]

Schedule A

Schedule B

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Schedule C

Annex A

[Form of Third Supplemental Indenture]

Annex B

[Form of Warrant]

Annex C

[Form of Fifth Amendment to Registration Rights Agreement]