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SPONSOR STOCKHOLDER: |
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JCIC SPONSOR LLC |
By its Manager, KSH CAPITAL LP |
Acting by its General Partner |
KSH CAPITAL GP LLC |
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Name: |
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Robert F. Savage |
Title: |
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President |
[Signature Page to
Stockholders Agreement]
SCHEDULE A
BTO Stockholders:
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Entity Name |
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Address and Email Address |
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Common Stock
Beneficially Owned (directly or
indirectly) as of Closing |
[BTO Grannus Holdings C L.P.] |
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c/o Blackstone Inc. 345 Park Avenue
New York, New York 10154 Attn: Tactical Opportunities
Email: TacOppsOperations@Blackstone.com |
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[] |
[Blackstone Tactical Opportunities Associates NQ L.L.C.] |
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c/o Blackstone Inc. 345 Park Avenue
New York, New York 10154 Attn: Tactical Opportunities
Email: TacOppsOperations@Blackstone.com |
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[] |
[BTO Grannus Holdings III NQ LLC] |
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c/o Blackstone Inc. 345 Park Avenue
New York, New York 10154 Attn: Tactical Opportunities
Email: TacOppsOperations@Blackstone.com |
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[] |
[Blackstone Tactical Opportunities Fund - FD LP] |
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c/o Blackstone Inc. 345 Park Avenue
New York, New York 10154 Attn: Tactical Opportunities
Email: TacOppsOperations@Blackstone.com |
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[] |
[Blackstone Family Tactical Opportunities Investment Partnership III - NQ - ESC LP] |
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c/o Blackstone Inc. 345 Park Avenue
New York, New York 10154 Attn: Tactical Opportunities
Email: TacOppsOperations@Blackstone.com |
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[] |
Founder Stockholder:3
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Entity Name |
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Address and Email Address |
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Common Stock Beneficially
Owned (directly or indirectly) as of
Closing |
Bridger Element, LLC |
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[] |
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[] |
3 |
Note to Draft: To be updated at Closing. |
Sponsor Stockholder:
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Entity Name |
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Address and Email Address |
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Common Stock Beneficially
Owned (directly or indirectly) as of
Closing |
JCIC Sponsor LLC |
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c/o Jack Creek Investment Corp 386 Park Avenue
South, FL 20 New York, NY 10016 Attention: Tariq Khan; Lauren
Ores E-mail: tkhan@kshcapital.com; lores@kshcapital.com |
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[] |
EXHIBIT E
FORM OF FIRST CERTIFICATE OF MERGER
EXHIBIT E
CERTIFICATE OF MERGER
OF
WILDFIRE MERGER SUB
I, INC.
A DELAWARE CORPORATION
WITH AND INTO
BTOF
(GRANNUS FEEDER) NQ L.P.
A DELAWARE LIMITED PARTNERSHIP
Pursuant to Title 8, Section 263(c) of the Delaware General Corporation Law (the DGCL) and Title 6, Section 17-211 of the Delaware Revised Uniform Limited Partnership Act (the DRULPA), as applicable, the undersigned limited partnership executed the following Certificate of Merger:
FIRST: The name, state of incorporation or formation and entity type of each of the constituent entities are: BTOF (Grannus Feeder)
NQ L.P., a Delaware limited partnership (the Partnership), and Wildfire Merger Sub I, Inc., a Delaware corporation (Merger Sub).
SECOND: The Agreement and Plan of Merger, dated as of August 3, 2022 (the Merger Agreement), by and among Jack Creek
Investment Corp., a Cayman Islands exempted company, Bridger Aerospace Group Holdings, LLC, a Delaware limited liability company, the Partnership, Merger Sub and each of the other parties thereto, setting forth the terms and conditions of the merger
of Merger Sub with and into the Partnership (the Merger), has been approved, adopted, certified, executed and acknowledged by each of the Partnership and Merger Sub in accordance with Title 8, Section 263 of the DGCL and
Title 6, Section 17-211 of the DRULPA, as applicable.
THIRD: The Partnership will be
the surviving limited partnership in the Merger (the Surviving Partnership). The name of the Surviving Partnership following the Merger shall be [BTOF (GRANNUS FEEDER) NQ
L.P.]1, a Delaware limited partnership.
FOURTH: Upon the effectiveness of the
Merger, the Certificate of Limited Partnership of the Surviving Partnership shall be in the form attached hereto as Exhibit A.
FIFTH: The Merger shall become effective [at [] [a.m./p.m] Eastern Time on []].
SIXTH: A copy of the Merger Agreement is on file at the principal place of business of the Surviving Partnership at the following
address:
[]2
[90 Aviation Lane
Belgrade, MT
59714]
SEVENTH: A copy of the Merger Agreement will be furnished by the Surviving Partnership, on request and without cost, to any
partner of the Partnership or any stockholder of Merger Sub.
[Signature page follows]
1 |
Note to Draft: To be completed by the Company at Closing. |
2 |
Note to Draft: To be completed by the Company at Closing. |
IN WITNESS WHEREOF, the Partnership has caused this Certificate of Merger to be
signed by its general partner as of the _______ day of [].
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Blackstone Tactical Opportunities Associates NQ L.L.C. |
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By: BTOA NQ L.L.C., its sole member |
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By: |
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Name: [] |
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Title: [] |
[SIGNATURE PAGE TO
CERTIFICATE OF MERGER FIRST MERGER]
EXHIBIT F
FORM OF SECOND CERTIFICATE OF MERGER
EXHIBIT F
CERTIFICATE OF MERGER
OF
WILDFIRE MERGER SUB
II, INC.
A DELAWARE CORPORATION
WITH AND INTO
JACK CREEK
INVESTMENT CORP.
A CAYMAN ISLANDS EXEMPTED COMPANY
Pursuant to Title 8, Section 252 of the Delaware General Corporation Law (the DGCL), the undersigned surviving company executed the
following Certificate of Merger:
FIRST: The name, state or country of incorporation or formation and entity type of each of the constituent
entities are: Jack Creek Investment Corp., a Cayman Islands exempted company (the Company), and Wildfire Merger Sub II, Inc., a Delaware corporation (Merger Sub).
SECOND: The Agreement and Plan of Merger, dated as of August 3, 2022 (the Merger Agreement), by and among the Company, Bridger
Aerospace Group Holdings, LLC, a Delaware limited liability company, Merger Sub and each of the other parties thereto, setting forth the terms and conditions of the merger of Merger Sub with and into the Company (the Merger), has
been approved, adopted, certified, executed and acknowledged by each of the Company and Merger Sub in accordance with Title 8, Section 252 of the DGCL.
THIRD: The Company will be the surviving company in the Merger (the Surviving Company). The name of the Surviving Company following
the Merger shall be []1, a Cayman Islands exempted company.
FOURTH: Upon the
effectiveness of the Merger, the Amended and Restated Memorandum and Articles of Association of the Surviving Company shall be in the form attached hereto as Exhibit A.
FIFTH: The Merger shall become effective [at [] [a.m./p.m]. Eastern Time on []].
SIXTH: A copy of the Merger Agreement is on file at the principal place of business of the Surviving Company at the following address:
[]2
[90 Aviation Lane
Belgrade, MT 59714]
SEVENTH: A copy of the Merger Agreement will be furnished by the Surviving Company, on request and without cost, to any shareholder of the Company or
any stockholder of Merger Sub.
1 |
Note to Draft: Company to confirm. |
2 |
Note to Draft: Company to confirm. |
EIGHT: The Surviving Company agrees that it may be served with process in the State of Delaware in
any proceeding for enforcement of any obligation of the Surviving Company arising from the Merger, including any suit or other proceeding to enforce the rights of any stockholders as determined in appraisal proceedings pursuant to the provisions of
Section 262 of the DGCL, and irrevocably appoints the Secretary of State of Delaware as its agent to accept services of process in any such suit or proceeding. The Secretary of State shall mail any such process to the Surviving Company at:
[].3
3 |
Note to Draft: Company to confirm. |
IN WITNESS WHEREOF, the Company has caused this Certificate of Merger to be signed by an authorized
signatory as of this [] day of [].
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JACK CREEK INVESTMENT CORP. |
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By: |
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Name: Robert F. Savage |
Title: Chief Executive Officer |
EXHIBIT G
FORM OF THIRD CERTIFICATE OF MERGER
EXHIBIT G
CERTIFICATE OF MERGER
OF
WILDFIRE MERGER SUB
III, LLC
A DELAWARE LIMITED LIABILITY COMPANY
WITH AND INTO
BRIDGER
AEROSPACE GROUP HOLDINGS, LLC
A DELAWARE LIMITED LIABILITY COMPANY
Pursuant to Title 6, Section 18-209 of the Delaware Limited Liability Company Act (the
DLLCA), the undersigned limited liability company executed the following Certificate of Merger:
FIRST: The name
and state of formation of each of the constituent limited liability companies are: Bridger Aerospace Group Holdings, LLC, a Delaware limited liability company (the Company), and Wildfire Merger Sub III, LLC, a Delaware limited
liability company (Merger Sub).
SECOND: The Agreement and Plan of Merger, dated as of August 3, 2022 (the
Merger Agreement), by and among Jack Creek Investment Corp., a Cayman Islands exempted company, the Company, Merger Sub and each of the other parties thereto, setting forth the terms and conditions of the merger of Merger Sub with
and into the Company (the Merger), has been approved and executed by each of the Company and Merger Sub in accordance with Title 6, Section 18-209 of the DLLCA.
THIRD: The Company will be the surviving limited liability company in the Merger (the Surviving Company). The name
of the Surviving Company following the Merger shall be []1, a Delaware limited liability company.
FOURTH: Upon the effectiveness of the Merger, the Certificate of Formation of the Company will be the Certificate of Formation of the
Surviving Company, [provided that Article FIRST thereof will be amended and restated in its entirety as follows to change the name of the Surviving Company.
FIRST: The name of the limited liability company is [BRIDGER AEROSPACE GROUP HOLDINGS,
LLC].]2
FIFTH: The Merger shall become effective [at [] [a.m./p.m.]
Eastern Time on []].
SIXTH: A copy of the Merger Agreement is on file at the principal place of business of the Surviving
Company at the following address:
[]3
[90 Aviation Lane
Belgrade, MT
59714]
1 |
Note to Draft: Company to confirm. |
3 |
Note to Draft: Company to provide. |
SEVENTH: A copy of the Merger Agreement will be furnished by the Surviving Company,
on request and without cost, to any member of either constituent limited liability company.
[Signature page follows]
IN WITNESS WHEREOF, the Company has caused this Certificate of Merger to be signed by an
authorized person as of the [] day of [].
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BRIDGER AEROSPACE GROUP HOLDINGS, LLC |
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By: |
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Name: []4 |
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Title: [] |
4 |
Note to Draft: Company to provide. |
EXHIBIT H
FORM OF FIRST SURVIVING LIMITED PARTNERSHIP CERTIFICATE OF LIMITED PARTNERSHIP
EXHIBIT H
AMENDED AND RESTATED
CERTIFICATE OF LIMITED PARTNERSHIP
OF
BTOF (GRANNUS FEEDER)
- NQ L.P.
August [], 2022
The undersigned, desiring to amend and restate the Certificate of Limited Partnership of BTOF (Grannus
Feeder)-NQ L.P. (the Partnership) that was filed with the Delaware Secretary of State on November 16, 2018 pursuant to the provisions of
Section 17-201 of the Delaware Revised Uniform Limited Partnership Act, hereby certifies as follows:
1. Name. The name of the Partnership is: BTOF (Grannus Feeder)-NQ L.P.
2. Registered Office. The address of the registered office of the Partnership in the State of Delaware is c/o Intertrust Corporate
Services Delaware Ltd., 200 Bellevue Parkway, Suite 210, Bellevue Park Corporate Center, City of Wilmington, Delaware 19809.
3.
Registered Agent. The name and address of the registered agent of the Partnership in the State of Delaware are Intertrust Corporate Services Delaware Ltd., 200 Bellevue Parkway, Suite 210, Bellevue Park Corporate Center, City of Wilmington,
Delaware 19809.
4. General Partner. The name and the business address of the general partner of the Partnership are Wildfire GP
Sub IV, LLC, 90 Aviation Lane, Belgrade, Montana 59714.
IN WITNESS WHEREOF, the undersigned has duly executed this Amended and Restated
Certificate of Limited Partnership as of the date first above written and submits it for filing in accordance with the Delaware Revised Uniform Limited Partnership Act.
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GENERAL PARTNER |
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Wildfire GP Sub IV, LLC |
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By: |
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Name: |
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Title: |
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EXHIBIT I
FORM OF SECOND SURVIVING COMPANY AMENDED AND RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION
EXHIBIT I
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
[ ]1
(ADOPTED BY SPECIAL RESOLUTION DATED [ ])
1 |
Note to Draft: Company to provide. |
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
[ ]2
(Adopted by special resolution dated [ ])
1 |
The name of the Company is [ ]3. |
2 |
The Registered Office of the Company shall be at the offices of Maples Corporate Services Limited, PO Box 309,
Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within the Cayman Islands as the Directors may decide. |
3 |
The objects for which the Company is established are unrestricted and the Company shall have full power and
authority to carry out any object not prohibited by the laws of the Cayman Islands. |
4 |
The liability of each Member is limited to the amount unpaid on such Members shares.
|
5 |
[The share capital of the Company is US$50,000 divided into 50,000 shares of a par value of US$1.00 each]4. |
6 |
The Company has power to register by way of continuation as a body corporate limited by shares under the laws
of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
7 |
Capitalised terms that are not defined in this Memorandum of Association bear the respective meanings given to
them in the Articles of Association of the Company. |
2 |
Note to Draft: Company to provide. |
3 |
Note to Draft: Company to provide. |
4 |
Note to Draft: Company to confirm. |
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
[ ]5
(Adopted by special resolution dated [ ])
1.1 |
In the Articles Table A in the First Schedule to the Statute does not apply and, unless there is something in
the subject or context inconsistent therewith: |
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Articles |
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means these articles of association of the Company. |
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Auditor |
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means the person for the time being performing the duties of auditor of the Company (if any). |
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Company |
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means the above named company. |
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Directors |
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means the directors for the time being of the Company. |
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Dividend |
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means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles. |
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Electronic Record |
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has the same meaning as in the Electronic Transactions Act. |
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Electronic Transactions Act |
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means the Electronic Transactions Act (As Revised) of the Cayman Islands. |
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Member |
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has the same meaning as in the Statute. |
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Memorandum |
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means the memorandum of association of the Company. |
5 |
Note to Draft: Company to provide. |
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Ordinary Resolution |
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means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous written resolution. In computing the
majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles. |
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Register of Members |
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means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. |
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Registered Office |
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means the registered office for the time being of the Company. |
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Seal |
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means the common seal of the Company and includes every duplicate seal. |
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Share |
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means a share in the Company and includes a fraction of a share in the Company. |
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Special Resolution |
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has the same meaning as in the Statute, and includes a unanimous written resolution. |
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Statute |
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means the Companies Act (As Revised) of the Cayman Islands. |
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Subscriber |
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means the subscriber to the Memorandum. |
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Treasury Share |
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means a Share held in the name of the Company as a treasury share in accordance with the Statute. |
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(a) |
words importing the singular number include the plural number and vice versa; |
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(b) |
words importing the masculine gender include the feminine gender; |
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(c) |
words importing persons include corporations as well as any other legal or natural person;
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(d) |
written and in writing include all modes of representing or reproducing words in
visible form, including in the form of an Electronic Record; |
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(e) |
shall shall be construed as imperative and may shall be construed as permissive;
|
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(f) |
references to provisions of any law or regulation shall be construed as references to those provisions as
amended, modified, re-enacted or replaced; |
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(g) |
any phrase introduced by the terms including, include, in particular or any
similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
2
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(h) |
the term and/or is used to mean both and as well as or. The use of
and/or in certain contexts in no respects qualifies or modifies the use of the terms and or or in others. The term or shall not be interpreted to be exclusive and the term and shall not be
interpreted to require the conjunctive (in each case, unless the context otherwise requires); |
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(i) |
headings are inserted for reference only and shall be ignored in construing the Articles;
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(j) |
any requirements as to delivery under the Articles include delivery in the form of an Electronic Record;
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(k) |
any requirements as to execution or signature under the Articles including the execution of the Articles
themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act; |
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(l) |
sections 8 and 19(3) of the Electronic Transactions Act shall not apply; |
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(m) |
the term clear days in relation to the period of a notice means that period excluding the day when
the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and |
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(n) |
the term holder in relation to a Share means a person whose name is entered in the Register of
Members as the holder of such Share. |
2 |
Commencement of Business |
2.1 |
The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall
see fit. |
2.2 |
The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about
the formation and establishment of the Company, including the expenses of registration. |
3.1 |
Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in
general meeting) and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) with or without preferred, deferred or other
rights or restrictions, whether in regard to Dividend or other distribution, voting, return of capital or otherwise and to such persons, at such times and on such other terms as they think proper, and may also (subject to the Statute and the
Articles) vary such rights. Notwithstanding the foregoing, the Subscriber shall have the power to: |
|
(a) |
issue one Share to itself; |
3
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(b) |
transfer that Share by an instrument of transfer to any person; and |
|
(c) |
update the Register of Members in respect of the issue and transfer of that Share. |
3.2 |
The Company shall not issue Shares to bearer. |
4.1 |
The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute.
|
4.2 |
The Directors may determine that the Company shall maintain one or more branch registers of Members in
accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time.
|
5 |
Closing Register of Members or Fixing Record Date |
5.1 |
For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any
adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may provide that the Register of Members shall be closed for
transfers for a stated period which shall not in any case exceed forty days. |
5.2 |
In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears a date
as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other
distribution, or in order to make a determination of Members for any other purpose. |
5.3 |
If the Register of Members is not so closed and no record date is fixed for the determination of Members
entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution, the date on which notice of the meeting is sent or the date on which the resolution of the Directors resolving to
pay such Dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article,
such determination shall apply to any adjournment thereof. |
6 |
Certificates for Shares |
6.1 |
A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall
be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise
certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be |
4
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consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and subject to the
Articles no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled. |
6.2 |
The Company shall not be bound to issue more than one certificate for Shares held jointly by more than one
person and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them. |
6.3 |
If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to
evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate.
|
6.4 |
Every share certificate sent in accordance with the Articles will be sent at the risk of the Member or other
person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery. |
7.1 |
Subject to Article 3.1, Shares are transferable subject to the approval of the Directors by resolution who may,
in their absolute discretion, decline to register any transfer of Shares without giving any reason. If the Directors refuse to register a transfer they shall notify the transferee within two months of such refusal. |
7.2 |
The instrument of transfer of any Share shall be in writing and shall be executed by or on behalf of the
transferor (and if the Directors so require, signed by or on behalf of the transferee). The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members. |
8 |
Redemption, Repurchase and Surrender of Shares |
8.1 |
Subject to the provisions of the Statute the Company may issue Shares that are to be redeemed or are liable to
be redeemed at the option of the Member or the Company. The redemption of such Shares shall be effected in such manner and upon such other terms as the Company may, by Special Resolution, determine before the issue of the Shares.
|
8.2 |
Subject to the provisions of the Statute, the Company may purchase its own Shares (including any redeemable
Shares) in such manner and on such other terms as the Directors may agree with the relevant Member. |
8.3 |
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner
permitted by the Statute, including out of capital. |
8.4 |
The Directors may accept the surrender for no consideration of any fully paid Share. |
5
9.1 |
The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall
be held as a Treasury Share. |
9.2 |
The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think
proper (including, without limitation, for nil consideration). |
10 |
Variation of Rights of Shares |
10.1 |
If at any time the share capital of the Company is divided into different classes of Shares, all or any of the
rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such
variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that
class, or with the approval of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of the Shares of that class. For the avoidance of doubt, the Directors reserve the right,
notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply
mutatis mutandis, except that the necessary quorum shall be one person holding or representing by proxy at least one third of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a
poll. |
10.2 |
For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares
as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares. |
10.3 |
The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall
not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith. |
11 |
Commission on Sale of Shares |
The Company may, in so far as the Statute permits, pay a commission to any person in consideration of that person subscribing or agreeing to
subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.
6
12 |
Non Recognition of Trusts |
The Company shall not be bound by or compelled to recognise in any way (even when notified) any equitable, contingent, future or partial
interest in any Share, or (except only as is otherwise provided by the Articles or the Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder.
13.1 |
The Company shall have a first and paramount lien on all Shares (whether fully
paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Member or
their estate, either alone or jointly with any other person, whether a Member or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The registration of a transfer of any such
Share shall operate as a waiver of the Companys lien thereon. The Companys lien on a Share shall also extend to any amount payable in respect of that Share. |
13.2 |
The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, if
a sum in respect of which the lien exists is presently payable, and is not paid within 14 clear days after notice has been received or deemed to have been received by the holder of the Shares, or to the person entitled to it in consequence of the
death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold. |
13.3 |
To give effect to any such sale the Directors may authorise any person to execute an instrument of transfer of
the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or their nominee shall be registered as the holder of the Shares comprised in any such transfer, and they shall not be bound to see to the application of the
purchase money, nor shall their title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Companys power of sale under the Articles. |
13.4 |
The net proceeds of such sale after payment of costs, shall be applied in payment of such part of the amount in
respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale.
|
14.1 |
Subject to the terms of the allotment and issue of any Shares, the Directors may make calls upon the Members in
respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to receiving at least 14 clear days notice specifying the time or times of payment) pay to the Company at the time or
times so specified the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the Directors may determine. A call may be required to be paid by instalments. A person upon whom a call is made shall remain liable for
calls made upon them notwithstanding the subsequent transfer of the Shares in respect of which the call was made. |
7
14.2 |
A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call
was passed. |
14.3 |
The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof.
|
14.4 |
If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest
on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine (and in addition all expenses that have been incurred by the Company by reason of such
non-payment), but the Directors may waive payment of the interest or expenses wholly or in part. |
14.5 |
An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account of the
par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call. |
14.6 |
The Directors may issue Shares with different terms as to the amount and times of payment of calls, or the
interest to be paid. |
14.7 |
The Directors may, if they think fit, receive an amount from any Member willing to advance all or any part of
the monies uncalled and unpaid upon any Shares held by that Member, and may (until the amount would otherwise become payable) pay interest at such rate as may be agreed upon between the Directors and the Member paying such amount in advance.
|
14.8 |
No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of a
Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment, become payable. |
15.1 |
If a call or instalment of a call remains unpaid after it has become due and payable the Directors may give to
the person from whom it is due not less than 14 clear days notice requiring payment of the amount unpaid together with any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify where payment is to be made and shall state that if the notice is not complied with the Shares in respect of which the call was made will be liable to be forfeited.
|
15.2 |
If the notice is not complied with, any Share in respect of which it was given may, before the payment required
by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all Dividends, other distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture.
|
8
15.3 |
A forfeited Share may be sold, re-allotted or otherwise disposed of on
such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the
purposes of its disposal a forfeited Share is to be transferred to any person the Directors may authorise some person to execute an instrument of transfer of the Share in favour of that person. |
15.4 |
A person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall
surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies which at the date of forfeiture were payable by that person to the Company in respect of those Shares
together with interest at such rate as the Directors may determine, but that persons liability shall cease if and when the Company shall have received payment in full of all monies due and payable by them in respect of those Shares.
|
15.5 |
A certificate in writing under the hand of one Director or officer of the Company that a Share has been
forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share. The certificate shall (subject to the execution of an instrument of transfer) constitute a good title
to the Share and the person to whom the Share is sold or otherwise disposed of shall not be bound to see to the application of the purchase money, if any, nor shall their title to the Share be affected by any irregularity or invalidity in the
proceedings in reference to the forfeiture, sale or disposal of the Share. |
15.6 |
The provisions of the Articles as to forfeiture shall apply in the case of non payment of any sum which, by the
terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of premium as if it had been payable by virtue of a call duly made and notified. |
16 |
Transmission of Shares |
16.1 |
If a Member dies the survivor or survivors (where they were a joint holder) or their legal personal
representatives (where they were a sole holder), shall be the only persons recognised by the Company as having any title to the deceased Members Shares. The estate of a deceased Member is not thereby released from any liability in respect of
any Share, for which the Member was a joint or sole holder. |
16.2 |
Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution
of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect, by a notice in writing sent by that person to the Company, either to become the holder of such Share or to have
some person nominated by them registered as the holder of such Share. If they elect to have another person registered as the holder of such Share they shall sign an instrument of transfer of that Share to that person. The Directors shall, in either
case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before their death or bankruptcy or liquidation or dissolution, as the case may be.
|
9
16.3 |
A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of a
Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages to which they would be entitled if they were the holder of such Share. However, they shall not, before becoming a Member
in respect of a Share, be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Directors may at any time give notice requiring any such person to elect either to be registered
or to have some person nominated by them registered as the holder of the Share (but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the
relevant Member before their death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within 90 days of being received or deemed to be received (as determined
pursuant to the Articles) the Directors may thereafter withhold payment of all Dividends, other distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with.
|
17 |
Amendments of Memorandum and Articles of Association and Alteration of Capital |
17.1 |
The Company may by Ordinary Resolution: |
|
(a) |
increase its share capital by such sum as the Ordinary Resolution shall prescribe and with such rights,
priorities and privileges annexed thereto, as the Company in general meeting may determine; |
|
(b) |
consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares;
|
|
(c) |
convert all or any of its paid-up Shares into stock, and reconvert that
stock into paid-up Shares of any denomination; |
|
(d) |
by subdivision of its existing Shares or any of them divide the whole or any part of its share capital into
Shares of smaller amount than is fixed by the Memorandum or into Shares without par value; and |
|
(e) |
cancel any Shares that at the date of the passing of the Ordinary Resolution have not been taken or agreed to
be taken by any person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
17.2 |
All new Shares created in accordance with the provisions of the preceding Article shall be subject to the same
provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. |
17.3 |
Subject to the provisions of the Statute and the provisions of the Articles as regards the matters to be dealt
with by Ordinary Resolution, the Company may by Special Resolution: |
10
|
(b) |
alter or add to the Articles; |
|
(c) |
alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and
|
|
(d) |
reduce its share capital or any capital redemption reserve fund. |
18 |
Offices and Places of Business |
Subject to the provisions of the Statute, the Company may by resolution of the Directors change the location of its Registered Office. The
Company may, in addition to its Registered Office, maintain such other offices or places of business as the Directors determine.
19.1 |
All general meetings other than annual general meetings shall be called extraordinary general meetings.
|
19.2 |
The Company may, but shall not (unless required by the Statute) be obliged to, in each year hold a general
meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall be held at such time and place as the Directors shall appoint and if no other time and place is prescribed by
them, it shall be held at the Registered Office on the second Wednesday in December of each year at ten oclock in the morning. At these meetings the report of the Directors (if any) shall be presented. |
19.3 |
The Directors may call general meetings, and they shall on a Members requisition forthwith proceed to
convene an extraordinary general meeting of the Company. |
19.4 |
A Members requisition is a requisition of Members holding at the date of deposit of the requisition not
less than 10% in par value of the issued Shares which as at that date carry the right to vote at general meetings of the Company. |
19.5 |
The Members requisition must state the objects of the meeting and must be signed by the requisitionists
and deposited at the Registered Office, and may consist of several documents in like form each signed by one or more requisitionists. |
19.6 |
If there are no Directors as at the date of the deposit of the Members requisition or if the Directors do
not within 21 days from the date of the deposit of the Members requisition duly proceed to convene a general meeting to be held within a further 21 days, the requisitionists, or any of them representing more than
one-half of the total voting rights of all of the requisitionists, may themselves convene a general meeting, but any meeting so convened shall be held no later than the day which falls three months after the
expiration of the said 21 day period. |
19.7 |
A general meeting convened as aforesaid by requisitionists shall be convened in the same manner as nearly as
possible as that in which general meetings are to be convened by Directors. |
11
20 |
Notice of General Meetings |
20.1 |
At least five clear days notice shall be given of any general meeting. Every notice shall specify the
place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company,
provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been
duly convened if it is so agreed: |
|
(a) |
in the case of an annual general meeting, by all of the Members entitled to attend and vote at the meeting; and
|
|
(b) |
in the case of an extraordinary general meeting, by a majority in number of the Members having a right to
attend and vote at the meeting, together holding not less than 95% in par value of the Shares giving that right. |
20.2 |
The accidental omission to give notice of a general meeting to, or the non receipt of notice of a general
meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting. |
21 |
Proceedings at General Meetings |
21.1 |
No business shall be transacted at any general meeting unless a quorum is present. Two Members being
individuals present in person or by proxy or if a corporation or other non-natural person by its duly authorised representative or proxy shall be a quorum unless the Company has only one Member entitled to
vote at such general meeting in which case the quorum shall be that one Member present in person or by proxy or (in the case of a corporation or other non-natural person) by its duly authorised representative
or proxy. |
21.2 |
A person may participate at a general meeting by conference telephone or other communications equipment by
means of which all the persons participating in the meeting can communicate with each other. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting. |
21.3 |
A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf
of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations or other non-natural persons, signed by their duly authorised
representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held. |
21.4 |
If a quorum is not present within half an hour from the time appointed for the meeting to commence or if during
such a meeting a quorum ceases to be present, the meeting, if convened upon a Members requisition, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same time and/or place or to such
other day, time and/or place as the Directors may determine, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Members present shall be a quorum.
|
12
21.5 |
The Directors may, at any time prior to the time appointed for the meeting to commence, appoint any person to
act as chairperson of a general meeting of the Company or, if the Directors do not make any such appointment, the chairperson, if any, of the board of Directors shall preside as chairperson at such general meeting. If there is no such chairperson,
or if the chairperson shall not be present within 15 minutes after the time appointed for the meeting to commence, or is unwilling to act, the Directors present shall elect one of their number to be chairperson of the meeting. |
21.6 |
If no Director is willing to act as chairperson or if no Director is present within 15 minutes after the time
appointed for the meeting to commence, the Members present shall choose one of their number to be chairperson of the meeting. |
21.7 |
The chairperson may, with the consent of a meeting at which a quorum is present (and shall if so directed by
the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
|
21.8 |
When a general meeting is adjourned for 30 days or more, notice of the adjourned meeting shall be given as in
the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting. |
21.9 |
A resolution put to the vote of the meeting shall be decided on a show of hands unless before, or on the
declaration of the result of, the show of hands, the chairperson demands a poll, or any other Member or Members collectively present in person or by proxy (or in the case of a corporation or other non-natural
person, by its duly authorised representative or proxy) and holding at least 10% in par value of the Shares giving a right to attend and vote at the meeting demand a poll. |
21.10 |
Unless a poll is duly demanded and the demand is not withdrawn a declaration by the chairperson that a
resolution has been carried or carried unanimously, or by a particular majority, or lost or not carried by a particular majority, an entry to that effect in the minutes of the proceedings of the meeting shall be conclusive evidence of that fact
without proof of the number or proportion of the votes recorded in favour of or against such resolution. |
21.11 |
The demand for a poll may be withdrawn. |
21.12 |
Except on a poll demanded on the election of a chairperson or on a question of adjournment, a poll shall be
taken as the chairperson directs, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. |
21.13 |
A poll demanded on the election of a chairperson or on a question of adjournment shall be taken forthwith. A
poll demanded on any other question shall be taken at such date, time and place as the chairperson of the general meeting directs, and any business other than that upon which a poll has been demanded or is contingent thereon may proceed pending the
taking of the poll. |
13
21.14 |
In the case of an equality of votes, whether on a show of hands or on a poll, the chairperson shall be entitled
to a second or casting vote. |
22.1 |
Subject to any rights or restrictions attached to any Shares, on a show of hands every Member who (being an
individual) is present in person or by proxy or, if a corporation or other non-natural person is present by its duly authorised representative or by proxy, shall have one vote and on a poll every Member
present in any such manner shall have one vote for every Share of which they are the holder. |
22.2 |
In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by proxy
(or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted to the exclusion of the votes of the other joint holders, and seniority shall
be determined by the order in which the names of the holders stand in the Register of Members. |
22.3 |
A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in
lunacy, may vote, whether on a show of hands or on a poll, by their committee, receiver, curator bonis, or other person on such Members behalf appointed by that court, and any such committee, receiver, curator bonis or other
person may vote by proxy. |
22.4 |
No person shall be entitled to vote at any general meeting unless they are registered as a Member on the record
date for such meeting nor unless all calls or other monies then payable by them in respect of Shares have been paid. |
22.5 |
No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned
general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid. Any objection made in due time in accordance with this Article shall be referred to the chairperson whose decision shall
be final and conclusive. |
22.6 |
On a poll or on a show of hands votes may be cast either personally or by proxy (or in the case of a
corporation or other non-natural person by its duly authorised representative or proxy). A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a
meeting. Where a Member appoints more than one proxy the instrument of proxy shall state which proxy is entitled to vote on a show of hands and shall specify the number of Shares in respect of which each proxy is entitled to exercise the related
votes. |
22.7 |
On a poll, a Member holding more than one Share need not cast the votes in respect of their Shares in the same
way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting a Share or some or all of the Shares and, subject to the terms of the instrument appointing the proxy, a
proxy appointed under one or more instruments may vote a Share or some or all of the Shares in respect of which they are appointed either for or against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which
they are appointed. |
14
23.1 |
The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or
of their attorney duly authorised in writing, or, if the appointor is a corporation or other non natural person, under the hand of its duly authorised representative. A proxy need not be a Member. |
23.2 |
The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent
out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy
relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the Directors in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the
instrument appointing a proxy shall be deposited physically at the Registered Office not less than 48 hours before the time appointed for the meeting or adjourned meeting to commence at which the person named in the instrument proposes to vote.
|
23.3 |
The chairperson may in any event at their discretion declare that an instrument of proxy shall be deemed to
have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the chairperson, shall be invalid. |
23.4 |
The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may
approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll.
|
23.5 |
Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous
death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or
transfer was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which it is sought to use the proxy. |
Any corporation or other non-natural person which is a Member may in accordance with its constitutional
documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the person so
authorised shall be entitled to exercise the same powers on behalf of the corporation which they represent as the corporation could exercise if it were an individual Member.
15
25 |
Shares that May Not be Voted |
Shares in the Company that are beneficially owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be
counted in determining the total number of outstanding Shares at any given time.
There shall be a board of Directors consisting of not less than one person (exclusive of alternate Directors) provided however that the Company
may by Ordinary Resolution increase or reduce the limits in the number of Directors. The first Directors of the Company may be determined in writing by, or appointed by a resolution of, the Subscriber.
27.1 |
Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given by
Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which
would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
27.2 |
All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and
all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Directors shall determine by resolution. |
27.3 |
The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director
who has held any other salaried office or place of profit with the Company or to their surviving spouse, civil partner or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension
or allowance. |
27.4 |
The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its
undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation
of the Company or of any third party. |
28 |
Appointment and Removal of Directors |
28.1 |
The Company may by Ordinary Resolution appoint any person to be a Director or may by Ordinary Resolution remove
any Director. |
28.2 |
The Directors may appoint any person to be a Director, either to fill a vacancy or as an additional Director
provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with the Articles as the maximum number of Directors. |
16
29 |
Vacation of Office of Director |
The office of a Director shall be vacated if:
|
(a) |
the Director gives notice in writing to the Company that they resign the office of Director; or
|
|
(b) |
the Director is absent (for the avoidance of doubt, without being represented by proxy or an alternate Director
appointed by them) from three consecutive meetings of the board of Directors without special leave of absence from the Directors, and the Directors pass a resolution that they have by reason of such absence vacated office; or |
|
(c) |
the Director dies, becomes bankrupt or makes any arrangement or composition with their creditors generally; or
|
|
(d) |
the Director is found to be or becomes of unsound mind; or |
|
(e) |
all of the other Directors (being not less than two in number) determine that the Director should be removed as
a Director, either by a resolution passed by all of the other Directors at a meeting of the Directors duly convened and held in accordance with the Articles or by a resolution in writing signed by all of the other Directors. |
30 |
Proceedings of Directors |
30.1 |
The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so
fixed shall be two if there are two or more Directors, and shall be one if there is only one Director. A person who holds office as an alternate Director shall, if their appointor is not present, be counted in the quorum. A Director who also acts as
an alternate Director shall, if their appointor is not present, count twice towards the quorum. |
30.2 |
Subject to the provisions of the Articles, the Directors may regulate their proceedings as they think fit.
Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairperson shall have a second or casting vote. A Director who is also an alternate Director shall be entitled in the absence of
their appointor to a separate vote on behalf of their appointor in addition to their own vote. |
30.3 |
A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or
other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting.
Unless otherwise determined by the Directors the meeting shall be deemed to be held at the place where the chairperson is located at the start of the meeting. |
30.4 |
A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a
committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution (an alternate
Director being entitled to sign such a resolution |
17
|
on behalf of their appointor and if such alternate Director is also a Director, being entitled to sign such resolution both on behalf of their appointor and in their capacity as a Director) shall
be as valid and effectual as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. |
30.5 |
A Director or alternate Director may, or other officer of the Company on the direction of a Director or
alternate Director shall, call a meeting of the Directors by at least two days notice in writing to every Director and alternate Director which notice shall set forth the general nature of the business to be considered unless notice is waived
by all the Directors (or their alternates) either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall
apply mutatis mutandis. |
30.6 |
The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any
vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of
Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose. |
30.7 |
The Directors may elect a chairperson of their board and determine the period for which they are to hold
office; but if no such chairperson is elected, or if at any meeting the chairperson is not present within five minutes after the time appointed for the meeting to commence, the Directors present may choose one of their number to be chairperson of
the meeting. |
30.8 |
All acts done by any meeting of the Directors or of a committee of the Directors (including any person acting
as an alternate Director) shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director or alternate Director, and/or that they or any of them were disqualified, and/or had vacated their office
and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director or alternate Director and/or had not vacated their office and/or had been entitled to vote, as the case may be.
|
30.9 |
A Director but not an alternate Director may be represented at any meetings of the board of Directors by a
proxy appointed in writing by that Director. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director. |
A Director or alternate Director who is present at a meeting of the board of Directors at which action on any Company matter is taken shall be
presumed to have assented to the action taken unless their dissent shall be entered in the minutes of the meeting or unless they shall file their written dissent from such action with the person acting as the chairperson or secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director or alternate Director who voted in favour of such
action.
18
32.1 |
A Director or alternate Director may hold any other office or place of profit under the Company (other than the
office of Auditor) in conjunction with their office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine. |
32.2 |
A Director or alternate Director may act on their own or by, through or on behalf of their firm in a
professional capacity for the Company and they or their firm shall be entitled to remuneration for professional services as if they were not a Director or alternate Director. |
32.3 |
A Director or alternate Director may be or become a director or other officer of or otherwise interested in any
company promoted by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director or alternate Director shall be accountable to the Company for any remuneration or other benefits
received by them as a director or officer of, or from their interest in, such other company. |
32.4 |
No person shall be disqualified from the office of Director or alternate Director or prevented by such office
from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director or alternate Director shall be in any way
interested be or be liable to be avoided, nor shall any Director or alternate Director so contracting or being so interested be liable to account to the Company for any profit realised by or arising in connection with any such contract or
transaction by reason of such Director or alternate Director holding office or of the fiduciary relationship thereby established. A Director (or their alternate Director in their absence) shall be at liberty to vote in respect of any contract or
transaction in which they are interested provided that the nature of the interest of any Director or alternate Director in any such contract or transaction shall be disclosed by them at or prior to its consideration and any vote thereon.
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32.5 |
A general notice that a Director or alternate Director is a shareholder, director, officer or employee of any
specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which they have an
interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction. |
The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of officers made by the Directors, all
proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors or alternate Directors present at each meeting.
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34 |
Delegation of Directors Powers |
34.1 |
The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committee consisting of one or more Directors. They may also delegate to any managing director or any Director holding any other executive office such of their powers, authorities and
discretions as they consider desirable to be exercised by that Director, provided that an alternate Director may not act as managing director and the appointment of a managing director shall be revoked forthwith if they cease to be a Director. Any
such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors. Subject to any such conditions,
the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
34.2 |
The Directors may establish any committees, local boards or agencies or appoint any person to be a manager or
agent for managing the affairs of the Company and may appoint any person to be a member of such committees, local boards or agencies. Any such appointment may be made subject to any conditions the Directors may impose, and either collaterally with
or to the exclusion of their own powers and any such appointment may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of any such committee, local board or agency shall be governed by the Articles regulating
the proceedings of Directors, so far as they are capable of applying. |
34.3 |
The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company on such
conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Directors at any time. |
34.4 |
The Directors may by power of attorney or otherwise appoint any company, firm, person or body of persons,
whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors
under the Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such
attorneys or authorised signatories as the Directors may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in them. |
34.5 |
The Directors may appoint such officers of the Company (including, for the avoidance of doubt and without
limitation, any secretary) as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless otherwise specified in the
terms of their appointment an officer of the Company may be removed by resolution of the Directors or Members. An officer of the Company may vacate their office at any time if they give notice in writing to the Company that they resign their office.
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35.1 |
Any Director (but not an alternate Director) may by writing appoint any other Director, or any other person
willing to act, to be an alternate Director and by writing may remove from office an alternate Director so appointed by them. |
20
35.2 |
An alternate Director shall be entitled to receive notice of all meetings of Directors and of all meetings of
committees of Directors of which their appointor is a member, to attend and vote at every such meeting at which the Director appointing them is not personally present, to sign any written resolution of the Directors, and generally to perform all the
functions of their appointor as a Director in their absence. |
35.3 |
An alternate Director shall cease to be an alternate Director if their appointor ceases to be a Director.
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35.4 |
Any appointment or removal of an alternate Director shall be by notice to the Company signed by the Director
making or revoking the appointment or in any other manner approved by the Directors. |
35.5 |
Subject to the provisions of the Articles, an alternate Director shall be deemed for all purposes to be a
Director and shall alone be responsible for their own acts and defaults and shall not be deemed to be the agent of the Director appointing them. |
36 |
No Minimum Shareholding |
The Company in general meeting may fix a minimum shareholding required to be held by a Director, but unless and until such a shareholding
qualification is fixed a Director is not required to hold Shares.
37 |
Remuneration of Directors |
37.1 |
The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall
determine. The Directors shall also be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors, or general meetings of the
Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect
thereof as may be determined by the Directors, or a combination partly of one such method and partly the other. |
37.2 |
The Directors may by resolution approve additional remuneration to any Director for any services which in the
opinion of the Directors go beyond that Directors ordinary routine work as a Director. Any fees paid to a Director who is also counsel, attorney or solicitor to the Company, or otherwise serves it in a professional capacity shall be in
addition to their remuneration as a Director. |
38.1 |
The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of
the Directors or of a committee of the Directors authorised by the Directors. Every instrument to which the Seal has been affixed shall be signed by at least one person who shall be either a Director or some officer of the Company or other person
appointed by the Directors for the purpose. |
21
38.2 |
The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each
of which shall be a fax of the common Seal of the Company and, if the Directors so determine, with the addition on its face of the name of every place where it is to be used. |
38.3 |
A Director or officer, representative or attorney of the Company may without further authority of the Directors
affix the Seal over their signature alone to any document of the Company required to be authenticated by them under seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. |
39 |
Dividends, Distributions and Reserve |
39.1 |
Subject to the Statute and this Article and except as otherwise provided by the rights attached to any Shares,
the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an
interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the
realised or unrealised profits of the Company, out of the share premium account or as otherwise permitted by law. |
39.2 |
Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall
be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall rank for Dividend as from a particular date, that Share shall rank for Dividend accordingly. |
39.3 |
The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if
any) then payable by the Member to the Company on account of calls or otherwise. |
39.4 |
The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution
of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the
Directors may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members
upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Directors. |
39.5 |
Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be
paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how any costs involved are to be met. |
39.6 |
The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as they
think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the discretion of the Directors, be employed in the business of the Company.
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22
39.7 |
Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by
wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to
such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent. Any one of two or more joint holders may give effectual receipts
for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by them as joint holders. |
39.8 |
No Dividend or other distribution shall bear interest against the Company. |
39.9 |
Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six
months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid into a separate account in the Companys name, provided that the Company shall not be constituted as a trustee in
respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains unclaimed after a period of six years from the date on which such Dividend or other
distribution becomes payable shall be forfeited and shall revert to the Company. |
The Directors may at any time capitalise any sum standing to the credit of any of the Companys reserve accounts or funds (including the
share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been
divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts and things required to give effect to such capitalisation, with full power given to the Directors to make such
provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any
person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on
all such Members and the Company.
41.1 |
The Directors shall cause proper books of account (including, where applicable, material underlying
documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the
Company and the assets and |
23
|
liabilities of the Company. Such books of account must be retained for a minimum period of five years from the date on which they are prepared. Proper books shall not be deemed to be kept if
there are not kept such books of account as are necessary to give a true and fair view of the state of the Companys affairs and to explain its transactions. |
41.2 |
The Directors shall determine whether and to what extent and at what times and places and under what conditions
or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company
except as conferred by Statute or authorised by the Directors or by the Company in general meeting. |
41.3 |
The Directors may cause to be prepared and to be laid before the Company in general meeting profit and loss
accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law. |
42.1 |
The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors
determine. |
42.2 |
Every Auditor of the Company shall have a right of access at all times to the books and accounts and vouchers
of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor. |
42.3 |
Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their
tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their
appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the Directors or any general meeting of the Members.
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43.1 |
Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by
courier, post, telex, fax or email to such Member or to such Members address as shown in the Register of Members (or where the notice is given by email by sending it to the email address provided by such Member). Any notice, if posted from one
country to another, is to be sent by airmail. |
43.2 |
Where a notice is sent by courier, service of the notice shall be deemed to be effected by delivery of the
notice to a courier company, and shall be deemed to have been received on the third day (not including Saturdays or Sundays or public holidays) following the day on which the notice was delivered to the courier. Where a notice is sent by post,
service of the notice shall be deemed to be effected by properly addressing, pre paying and posting a letter containing the notice, and shall |
24
|
be deemed to have been received on the fifth day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was posted. Where a notice is
sent by telex or fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted. Where a notice is given by email service
shall be deemed to be effected by transmitting the email to the email address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the email
to be acknowledged by the recipient. |
43.3 |
A notice may be given by the Company to the person or persons which the Company has been advised are entitled
to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the
deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been
given if the death or bankruptcy had not occurred. |
43.4 |
Notice of every general meeting shall be given in any manner authorised by the Articles to every holder of
Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person
upon whom the ownership of a Share devolves because they are a legal personal representative or a trustee in bankruptcy of a Member where the Member but for their death or bankruptcy would be entitled to receive notice of the meeting, and no other
person shall be entitled to receive notices of general meetings. |
44.1 |
If the Company shall be wound up the liquidator shall apply the assets of the Company in satisfaction of
creditors claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding up: |
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(a) |
if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the
Companys issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them; or |
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(b) |
if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole
of the Companys issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a
deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise. |
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44.2 |
If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the
approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or
not) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like approval, vest the whole or any part of such assets in
trustees upon such trusts for the benefit of the Members as the liquidator, with the like approval, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability. |
45 |
Indemnity and Insurance |
45.1 |
Every Director and officer of the Company (which for the avoidance of doubt, shall not include auditors of the
Company), together with every former Director and former officer of the Company (each an Indemnified Person) shall be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs,
damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own
actual fraud or wilful default. No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through
the actual fraud or wilful default of such Indemnified Person. No person shall be found to have committed actual fraud or wilful default under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect.
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45.2 |
The Company shall advance to each Indemnified Person reasonable attorneys fees and other costs and
expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the
Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this
Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with
respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person. |
45.3 |
The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director or
other officer of the Company against any liability which, by virtue of any rule of law, would otherwise attach to such person in respect of any negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to
the Company. |
Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31st December in each year and, following the year of
incorporation, shall begin on 1st January in each year.
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47 |
Transfer by Way of Continuation |
If the Company is exempted as defined in the Statute, it shall, subject to the provisions of the Statute and with the approval of a Special
Resolution, have the power to register by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.
48 |
Mergers and Consolidations |
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such
terms as the Directors may determine and (to the extent required by the Statute) with the approval of a Special Resolution.
27
EXHIBIT J
FORM OF THIRD SURVIVING COMPANY LIMITED LIABILITY COMPANY AGREEMENT
EXHIBIT J
FINAL FORM
SIXTH AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
BRIDGER AEROSPACE
GROUP HOLDINGS, LLC
This SIXTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof, the Agreement) of Bridger Aerospace Group Holdings, LLC, a Delaware limited liability company (the Company) is effective and dated as of
[], 2022, by [Wildfire New PubCo, Inc. a Delaware corporation (New PubCo)]1 and BTOF (Grannus Feeder) NQ L.P., a Delaware limited partnership (together as the members of
the Company (the Members)), pursuant to and in accordance with the Delaware Limited Liability Company Act (6 De.C. § 18-101, et seq.), as amended from time to time (the
Act).
RECITAL
WHEREAS, the Company was formed pursuant to a Certificate of Formation filed for recordation in the office of the Secretary of State of
the State of Delaware on November 20, 2018;
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of
August 3, 2022, by and among the Members, Wildfire Merger Sub III, LLC, a Delaware limited liability company and direct, wholly owned subsidiary of the Member (Wildfire Merger Sub III), the Company and the other parties thereto
(the Merger Agreement), Wildfire Merger Sub III was merged with and into the Company, with the Company surviving the merger (the Merger); and
WHEREAS, in connection with the Merger, the Members intend to amend and restate the Fifth Amended and Restated Limited Liability
Company Agreement of the Company, dated as of April 25, 2022 (the Prior LLCA) by entering into this Agreement.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Members, intending to be legally bound, hereby agree to amend and restate the Prior LLCA as follows:
1 |
Note to Draft: Update to prior to Closing.
|
1
ARTICLE I
The Limited Liability Company
1.1 Formation; Certificates. The Company was formed as a limited liability company pursuant to the provisions of the Act. A certificate
of formation for the Company as described in Section 18-201, et seq. of the Act (the Certificate of Formation) was filed in the Office of the Secretary of State of the State of Delaware
in conformity with the Act on November 20, 2018. The Members shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which
the Company may wish to conduct business.
1.2 Name. The name of the Company is Bridger Aerospace Group Holdings, LLC
and its business shall be carried on in such name with such variations and changes as the Members shall determine or deem necessary to comply with requirements of the jurisdictions in which the Companys operations are conducted.
1.3 Business Purpose; Powers. The Company is formed for the purpose of engaging in any lawful business, purpose or activity for which
limited liability companies may be formed under the Act. The Company shall possess and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as
such powers and privileges are necessary, appropriate, proper, advisable, incidental or convenient to the conduct, promotion, furtherance or attainment of the business purposes or activities of the Company and for the protection and benefit of the
Company. The Company shall, without limitation, have all of the powers that may be exercised by the Members on behalf of the Company pursuant to this Agreement, including pursuant to Section 3.1.
1.4 Registered Office and Agent. The address of the Companys registered office in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company. The registered office and/or registered agent of the Company may be
changed from time to time in the discretion of the Managing Member.
1.5 Principal Place of Business. The principal place of
business and office of the Company shall be located, and the Companys business shall be conducted from, such place or places as may hereafter be determined by the Managing Member.
1.6 Term. The term of the Company commenced on the date of filing of the Certificate of Formation of the Company in accordance with the
Act and shall continue until dissolution of the Company in accordance with ARTICLE VI of this Agreement.
1.7 Limitation on
Liability. Except as otherwise required in the Act, all debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and none of the
Members, any Officer (as defined below), employee or agent of the Company (including a person having more than one such capacity) shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of acting in
such capacity or participating in the management of the Company.
2
ARTICLE II
The Members
2.1 The
Members. The name and address of the Members are as follows:
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|
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Name |
|
Address |
|
|
[Wildfire New PubCo, Inc.] |
|
[90 Aviation Lane Belgrade, MT
59714] |
|
|
BTOF (Grannus Feeder) NQ L.P. |
|
[90 Aviation Lane, Belgrade, MT
59714] |
2.2 Actions by the Members. Subject to Section 3.1 below, the Members may
approve a matter or take any action at a meeting or without a meeting by the written consent of the Members.
2.3 Power to Bind the
Company. Subject to Section 3.1 below, the Managing Member (acting in its capacity as such) shall have the authority to bind the Company to any third party with respect to any matter.
2.4 Admission of Members. Subject to Section 3.1 below, one or more additional members may be admitted to the Company with the
prior written consent of the Members. Prior to the admission of any such additional members to the Company, the Members shall amend this Agreement to make such changes as the Members shall determine to reflect the fact that the Company shall have
such additional members. Each additional member shall execute and deliver a supplement or counterpart to this Agreement, as necessary.
2.5 Membership Interests; Certificates. The Company will not issue any certificates to evidence ownership of the membership interests.
ARTICLE III
The
Managing Member
3.1 Management. The management, business, affairs, operation and policy of the Company shall be vested
exclusively in the Managing Member. In furtherance of the foregoing, and notwithstanding anything to the contrary contained herein, in no event and at no time shall the Company be managed by one or more managers or directors or by a board of
managers, board of directors or similar governing body. The Managing Member, acting through its duly authorized agents, is authorized and empowered on behalf and in the name of the Company to perform all acts and engage in all activities and
transactions which it may in its sole discretion deem necessary or advisable in order to cause the Company to carry out its purpose and exercise the powers granted to the Company hereunder and under the Act. The Managing Member is an agent of the
Company and the actions of the Managing Member in such capacity shall be binding on the Company without liability to the Managing Member. The Managing Member may approve a matter or take any action at a meeting or without a meeting by the written
consent of the Member. The Members hereby unanimously appoint [New PubCo] as the Managing Member of the Company.
3
3.2 Execution of Documents. The Managing Member is specifically authorized to
execute, sign, seal and deliver in the name of and on behalf of the Company any and all agreements, certificates, instruments or other documents requisite to carrying out the intentions and purposes of this Agreement and of the Company.
3.3 Member Compensation. The Managing Member may be compensated for its services to the Company, as determined in its sole discretion.
3.4 Officers and Related Persons. The Managing Member shall have the authority to appoint and terminate officers of the Company
(Officers) and retain and terminate employees, agents and consultants of the Company and to delegate such duties to any such Officers, employees, agents and consultants from time to time as the Managing Member deems appropriate or
advisable, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties; provided, that any delegation pursuant to this
Section 3.4 may be revoked at any time by the Managing Member in its sole discretion. The Member may assign in writing titles (including, without limitation, President, Vice President, Secretary and Treasurer) to any
Officer appointed by the Member pursuant to this Section 3.4. Unless the Member decides otherwise, if the title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law,
the assignment of such title shall constitute the delegation to such Officer of the authorities and duties that are normally associated with that office. Any Officer may resign at any time by giving written notice to the Member. Any such resignation
shall take effect at the date of the receipt of such notice or at any later time specified therein and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. A vacancy in any office
because of death, resignation, removal, disqualification or any other cause, shall be filled by the Member or any such person as may be appointed by the Member.
ARTICLE IV
Capital
Structure and Contributions
4.1 Capital Structure. The capital structure of the Company shall consist of one class of common
interests (the Common Units). All Common Units shall be identical with each other in every respect. The Members owns all of the Common Units issued and outstanding, as set forth on Schedule A attached hereto.
4.2 Capital Contributions. Subject to Section 3.1 above, capital contributions may be made by the Members at
such times and in such amounts as may be determined by the Members. A capital account shall be maintained for the Members, to which contributions and profits shall be credited and against which distributions and losses shall be charged.
4
ARTICLE V
Profits, Losses and Distributions
5.1 Profits and Losses. Subject to Section 3.1 above, for financial accounting and tax purposes, the
Companys net profits or net losses shall be determined on an annual basis in accordance with the manner determined by the Managing Member. In each year, profits and losses shall be allocated entirely to the Members pro rata in
accordance with the respective membership interests as set forth in Schedule A, attached hereto.
5.2 Distributions. Subject
to Section 3.1 above, the Members shall be entitled to receive distributions, including, without limitation, tax distributions or distributions in connection with the liquidation, dissolution or winding up of the affairs of
the Company, when, as and if determined by the Managing Member, in its sole discretion, out of funds of the Company legally available therefor, net of any reserves, payable on such record date to the Members. For the avoidance of doubt,
(a) distributions shall be distributed entirely to the Members, and (b) all determinations made pursuant to this Section 5.2 shall be made by the Managing Member in its sole discretion. Such distributions shall be paid to the Members
pro rata in accordance with the respective membership interests as set forth in Schedule A, attached hereto.
ARTICLE VI
Events of Dissolution
The Company shall be dissolved and its affairs wound up upon the occurrence of any of the following events:
(a) the written consent of the Members to dissolve the Company;
(b) the bankruptcy, dissolution, termination or winding-up of all Members; or
(c) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the
Act.
In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the
sale of the assets of the Company in an orderly manner) and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act.
ARTICLE VII
Transfer of
Common Units of the Company
The Members may sell, assign, transfer, pledge, hypothecate, convey, gift, exchange or otherwise dispose
of any or all of their Common Units as determined in their sole discretion and, upon receipt by the Company of a written agreement executed by the person or entity to whom such Common Units are to be transferred agreeing to be bound by the terms of
this Agreement as amended from time to time, such person shall be admitted as a member.
5
ARTICLE VIII
Exculpation; Indemnification
8.1 Exculpation of Covered Persons. None of the Members or any affiliate, officer, director, stockholder, partner, employee,
representative or agent of the Members, nor any Officer (each a Covered Person) shall be liable to the Company or any other person or entity bound by this Agreement for any act or omission performed or omitted by such Covered
Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by the Company, provided that, the foregoing shall not apply with respect to any act or
omission by an Officer (i) that constitutes fraud, willful misconduct or gross negligence or (ii) where such Officer derives an improper personal benefit from such act or omission. This Agreement is not intended to, and does not, create or
impose any fiduciary duty on the Members. Furthermore, the Company hereby waives any and all fiduciary duties that, absent such waiver, may be implied by applicable law, and in doing so, acknowledges and agrees that the duties and obligation of the
Members to the Company are only as expressly set forth in this Agreement.
8.2 Right of Indemnification of Covered Persons. To the
fullest extent permitted by law, the Company shall indemnify and hold harmless each Covered Person from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all
claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative (Action), in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of any act or
omission performed by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by the Company, provided that, an Officer shall not be
entitled to indemnification under this Section 8.2 with respect to (i) any Action with respect to which such Officer has engaged in fraud, willful misconduct, or gross negligence, (ii) any Action with respect to
which such Officer has derived any improper personal benefit, or (iii) any Action initiated by such Officer unless such Action (or part thereof) (A) was brought to enforce such Officers rights to indemnification hereunder or
(B) was authorized or consented to by the Members. For the avoidance of doubt, any indemnity under this ARTICLE VIII shall be provided out of and to the extent of the Companys assets only, and the Members shall not have any personal
liability on account thereof.
8.3 Prepayment of Expenses of Covered Persons. The Company shall pay the expenses (including
attorneys fees) incurred by a Covered Person in defending any Action in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the
Action shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this ARTICLE VIII or otherwise.
6
8.4 Claims by Covered Person. If a claim for indemnification or advancement of
expenses under this ARTICLE VIII is not paid in full within 30 days after a written claim therefor by the Covered Person has been received by the Company, the Covered Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Company shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or
advancement of expenses under applicable law.
8.5 Indemnification of Employees and Agents. The Company may indemnify and hold
harmless any employee or agent of the Company from any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any Action in which such employee or agent may be involved, or threatened to
be involved, as a party or otherwise, by reason of any act or omission performed by such employee or agent in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such employee
or agent by the Company, provided that the Company shall not indemnify any employee or agent with respect to (i) any Action with respect to which such employee or agent has engaged in fraud, willful misconduct, or gross negligence,
(ii) any Action with respect to which such employee or agent has derived any improper personal benefit, or (iii) any Action initiated by such employees or agents unless such Action (or part thereof) (A) was brought to
enforce such employees or agents rights to indemnification or (B) was authorized or consented to by the Managing Member. The ultimate determination of entitlement to indemnification of persons who are employees or agents shall be
made in such manner as is determined by the Managing Member in its sole discretion.
8.6 Advancement of Expenses of Employees and
Agents. The Company may pay the expenses (including attorneys fees) incurred by an employee or agent in defending any Action in advance of its final disposition on such terms and conditions as may be determined by the Managing Member.
8.7 Non-Exclusivity of Rights. The rights conferred on any person by this ARTICLE VIII
shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of this Agreement or any other agreement or otherwise.
8.8 Other Indemnification. The Companys obligation, if any, to indemnify any person who was or is serving at its request as a
director, officer or employee of another company, corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise shall be reduced by any amount such person may collect as indemnification from such other
company, corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise.
8.9
Insurance. The Managing Member may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the
Companys expense insurance: (i) to indemnify the Company for any obligation which it incurs as a result of the indemnification obligations under the provisions of this ARTICLE VIII and (ii) to indemnify or insure Officers and
employees against liability in instances in which they may not otherwise be indemnified by the Company under the provisions of this ARTICLE VIII.
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8.10 Amendment or Repeal. Any repeal or modification of the foregoing provisions of
this ARTICLE VIII shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights provided hereunder shall inure to the
benefit of any Covered Person and such persons heirs, executors and administrators.
ARTICLE IX
Miscellaneous
9.1 Tax
Treatment. Unless otherwise determined by the Managing Member, the Company shall be a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes), and the Members and the Company shall
timely make any and all necessary elections and filings for the Company treated as a disregarded entity for U.S. federal income tax purposes (as well as for any analogous state or local tax purposes).
9.2 Other Business. The Members may engage in or possess an interest in other business ventures (unconnected with the Company) of every
kind and description, independently or with others. The Company shall not have any rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement.
9.3 Amendments. Amendments to this Agreement and to the Certificate of Formation shall be approved in writing by the Members. An
amendment shall become effective as of the date specified in the approval of the Members or if none is specified as of the date of such approval or as otherwise provided in the Act.
9.4 Severability. Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions
herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable
and legal unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the expectations of the Members regarding this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the
Members with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision.
9.5 Headings. The headings in this Agreement are inserted for convenience or reference only and are in no way intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or any provision of this Agreement.
8
9.6 Governing Law. This Agreement, and all claims, proceedings or causes of action
(whether in contract, tort, statute or otherwise) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance or this Agreement, shall be governed by, construed and enforced in accordance with the
internal laws of the State of Delaware, without giving effect to any laws, rules or provisions that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each party hereby irrevocably and unconditionally
(a) consents and submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware sitting in the City of Wilmington, Delaware (or solely in the event the Court of Chancery of the State of Delaware decline to exercise such
jurisdiction, the exclusive jurisdiction of any federal or state court sitting in the City of Wilmington, Delaware) (collectively, the Courts), for any lawsuits, actions, claims or other proceedings that may be based upon, arise
out of or relate to this Agreement, or the negotiation, execution or performance or this Agreement and (b) waive any objection you may now or may hereafter have to laying of venue in the Courts, including, without limitation, based on improper
venue or forum non conveniens. Each party agrees not to commence any such lawsuit, action, claim or other proceeding except in the Courts. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LAWSUIT, ACTION, CLAIM OR OTHER PROCEEDING BASED UPON,
ARISING OUT OF OR RELATING TO THIS AGREEMENT IS EXPRESSLY AND IRREVOCABLY WAIVED.
9.7 Limited Liability Company. The Members
intend to form a limited liability company and do not intend to form a partnership under the laws of the State of Delaware or any other laws.
9.8 Entire Agreement. This Agreement constitutes the entire agreement of the Members with respect to the subject matter hereof.
[Remainder of page intentionally left blank]
9
IN WITNESS WHEREOF, the undersigned has duly executed this Sixth Amended and Restated
Limited Liability Company Agreement as of the day first above written.
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MEMBERS |
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[WILDFIRE NEW PUBCO, INC.] |
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By: |
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Name: |
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[] |
Title: |
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[] |
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BTOF (GRANNUS FEEDER) NQ L.P. |
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By: |
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Name: |
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[] |
Title: |
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[] |
[SIGNATURE PAGE TO SIXTH
AMENDED AND RESTATED LLC AGREEMENT OF BRIDGER AEROSPACE GROUP HOLDINGS, LLC ]
SCHEDULE A2
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Name of Members |
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Units |
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[Wildfire New PubCo, Inc.] |
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[ |
] |
BTOF (Grannus Feeder) NQ L.P. |
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[ |
] |
2 |
Note to Draft: To be revised prior to Closing. |
EXHIBIT K
MOUNTAIN AIR TERM SHEET
Exhibit K
Mountain Air Term Sheet
August 3, 2022
Reference is made to
(i) that certain Agreement and Plan of Merger (Agreement), dated as of the date hereof, by and among Jack Creek Investment Corp., a Cayman Islands exempted company (Purchaser), Wildfire New PubCo, Inc., a
Delaware corporation and direct, wholly owned subsidiary of Purchaser (New PubCo), Wildfire Merger Sub I, Inc., a Delaware corporation and direct, wholly owned subsidiary of New PubCo (Wildfire Merger Sub
I), Wildfire Merger Sub II, Inc., a Delaware corporation and direct, wholly owned subsidiary of New PubCo (Wildfire Merger Sub II), Wildfire Merger Sub III, LLC, a Delaware limited liability company and direct, wholly
owned subsidiary of New PubCo (Wildfire Merger Sub III), Wildfire GP Sub IV, LLC, a Delaware limited liability company and direct, wholly owned subsidiary of New PubCo (Wildfire
Merger Sub IV and together with Wildfire Merger Sub I, Wildfire Merger Sub II, and Wildfire Merger Sub III, the Merger Subs), BTOF (Grannus Feeder) NQ L.P., a Delaware limited partnership
(Blocker) and Bridger Aerospace Group Holdings, LLC and (ii) that certain Side Letter (Side Letter), dated as of the date hereof, by and among Purchaser, New PubCo, Bridger Aerospace Group Holdings, LLC,
Red Cloud Holdings, LLC and Timothy P. Sheehy. The following terms shall govern the transfer of all issued and outstanding ownership interests of Mountain Air, LLC (Mountain Air) to the Company or its subsidiaries (collectively,
the Company).
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Transaction Structure |
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The members of Mountain Air, being Timothy P. Sheehy and Red Cloud Holdings, LLC, (Founders), in respect of their one hundred percent (100%) ownership interests (the Interests) of Mountain Air, shall cause
the entirety of their Interests to be transferred to the Company. Founders and the Company will use reasonable best efforts to complete the transfer of such Interests from Founders to the Company pursuant to a definitive agreement(s) to be entered
into by Founders and the Company prior to the Closing (as defined in the Agreement) in good faith, and in accordance with the terms and conditions herein, the Agreement and the Side Letter. |
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Purchase Price |
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$1.00 and other good and valuable consideration. |
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Representations and Warranties |
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Customary representations and warranties for an as is, where is related party transaction. |
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No Recourse |
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The Company shall have no recourse against the Founders other than specific performance, excepting fraud. |
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Governance |
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Mountain Air shall be managed by the Company, as its sole member. |
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Timeline |
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Founders and the Company will complete the transfer from Founders to the Company prior to the Closing Date (as defined in the Agreement). |
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Other |
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The definitive agreement(s) will be governed by Delaware law. |
EXHIBIT L
FORM OF 2022 OMNIBUS INCENTIVE PLAN
Exhibit L
EXHIBIT L
[NEW PUBCO]
2022 OMNIBUS INCENTIVE PLAN
Section 1. Purpose. The purpose of the [New PubCo] 2022 Omnibus Incentive Plan (as amended from time to time, the
Plan) is to motivate and reward employees and other individuals to perform at the highest level and contribute significantly to the success of [New PubCo], and any successor corporation thereto (the Company),
thereby furthering the best interests of the Company and its shareholders.
Section 2. Definitions. As used in the Plan, the
following terms shall have the meanings set forth below:
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(a) |
Affiliate means any entity that, directly or indirectly through one or more intermediaries
controls, is controlled by or is under common control with, a Person. |
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(b) |
Award means any Option, SAR, Restricted Stock, RSU, Performance Award, Other Cash-Based
Award or Other Stock-Based Award, in any case, granted under the Plan. |
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(c) |
Award Agreement means any agreement, contract or other instrument or document (including in
electronic form) evidencing any Award granted under the Plan, which may, but need not, be executed or acknowledged by a Participant. |
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(d) |
Beneficiary means a Person entitled to receive payments or other benefits or exercise rights
that are available under the Plan in the event of a Participants death. If no such Person can be named or is named by a Participant, or if no Beneficiary designated by a Participant is eligible to receive payments or other benefits or exercise
rights that are available under the Plan at a Participants death, such Participants Beneficiary shall be such Participants estate. |
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(e) |
Board means the Board of Directors of the Company. |
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(f) |
Business Day means a day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to close. |
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(g) |
Capital Stock means the Companys common stock, [$0.00001] par value.
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(h) |
[Cause is as defined in any employment, service, consulting,
change-in-control, severance, or any other agreement between the Participant and the Company or its Affiliates, if any, or if not so defined, means the
Participants: (i) misconduct, (ii) conduct that is injurious to the Company or its Affiliates; (iii) conviction of, plea of guilty to, or plea of nolo contendere to, (x) a felony or (y) any other criminal offense involving
moral turpitude, fraud or dishonesty, (iv) commission of an act of fraud, embezzlement or misappropriation, in each case, against the Company or any of its Affiliates, (v) breach of any policies of the Company or its Affiliates or
(vi) breach of any applicable employment or service agreement between the Participant and the Company or any of its Affiliates. The determination of whether Cause exists shall be made by the Committee in its sole discretion.]
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(i) |
Change in Control means the occurrence of any one or more of the following events:
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(i) |
any Person, other than any Non-Change in Control Person, is (or
becomes, during any 12-month period) the beneficial owner (as such term is defined in Rule 13d- 3 under the Exchange Act), directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person or any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business)
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representing 50% or more of the total voting power of the stock of the Company; provided that the provisions of this subsection (i) are not intended to apply to or include as a Change
in Control any transaction that is specifically excepted from the definition of Change in Control under subsection (iii) below; |
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(ii) |
a change in the composition of the Board such that, during any 12-month
period, the individuals who, as of the beginning of such period, constitute the Board (the Existing Board) cease for any reason to constitute at least 50% of the Board; provided, however, that any individual becoming
a member of the Board subsequent to the beginning of such period whose election, or nomination for election by the Companys stockholders, was approved by a vote of at least a majority of the Directors immediately prior to the date of such
appointment or election shall be considered as though such individual were a member of the Existing Board; provided, further, that, notwithstanding the foregoing, no individual whose initial assumption of office occurs as a result of
either an actual or threatened election contest (as such terms are used in Rule 14a-11 or Regulation 14A promulgated under the Exchange Act or successor statutes or rules containing analogous concepts) or
other actual or threatened solicitation of proxies or consents by or on behalf of an individual, corporation, partnership, group, associate or other entity or Person other than the Board, shall in any event be considered to be a member of the
Existing Board; |
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(iii) |
the consummation of a merger or consolidation of the Company with any other corporation or other entity, or the
issuance of voting securities in connection with a merger or consolidation of the Company pursuant to applicable stock exchange requirements; provided that immediately following such merger or consolidation the voting securities of the
Company outstanding immediately prior thereto do not continue to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity of such merger or consolidation or parent entity thereof) 50% or more of
the total voting power of the Companys stock (or, if the Company is not the surviving entity of such merger or consolidation, 50% or more of the total voting power of the stock of such surviving entity or parent entity thereof); and
provided, further, that a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the beneficial owner, directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by such Person or any securities acquired directly from the Company or its Affiliates other than in connection with the acquisition by the Company or its Affiliates of a business)
representing 50% or more of either the then-outstanding Shares or the combined voting power of the Companys then-outstanding voting securities shall not be considered a Change in Control; or |
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(iv) |
the sale or disposition by the Company of all or substantially all of the Companys assets in which any
Person acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such Person) assets from the Company that have a total gross fair market value equal to more
than 50% of the total gross fair market value of all of the assets of the Company immediately prior to such acquisition or acquisitions. |
Notwithstanding the foregoing, (A) no Change in Control shall be deemed to have occurred if there is consummated any transaction or series
of integrated transactions immediately following which the record holders of the Shares immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns
substantially all of the assets of the Company immediately prior to such transaction or series of transactions, (B) to the extent an Award is subject to Section 409A of the Code if and only to the extent required to comply with the
requirements of Section 409A of the Code, no event or
2
circumstances described in any of clauses (i) through (iv) above shall constitute a Change in Control unless such event or circumstances also constitute a change in the ownership or
effective control of the Company, or in the ownership of a substantial portion of the Companys assets, as defined in Section 409A of the Code and (C) no Change in Control shall be deemed to have occurred upon the acquisition of
additional control of the Company by any Person that is considered to effectively control the Company. In no event will a Change in Control be deemed to have occurred if any Participant is part of a group within the meaning of
Section 13(d)(3) of the Exchange Act that effects a Change in Control. Terms used in the definition of a Change in Control shall be as defined or interpreted in a manner consistent with Section 409A of the Code. Further and for the
avoidance of doubt, in no event will the transactions contemplated by that certain Agreement and Plan of Merger entered into on [___], 2022, by and among the Company, [____] (the Merger Agreement) or the transactions occurring in
connection therewith constitute a Change in Control.
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(j) |
Code means the Internal Revenue Code of 1986, as amended from time to time, and the rules,
regulations and guidance thereunder. Any reference to a provision in the Code shall include any successor provision thereto. |
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(k) |
Committee means the compensation committee of the Board, unless another committee or
subcommittee is designated by the Board, which may include one or more Company directors or executive officers to the extent permitted under applicable law. If there is no compensation committee of the Board and the Board does not designate another
committee, references herein to the Committee shall refer to the Board. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange Act, it is intended that
each member of the Committee will be, at the time the Committee takes any action with respect to an Award that is subject to Rule 16b-3, a non-employee
director within the meaning of Rule 16b-3; however, a Committee members failure to qualify as a non-employee director within the meaning of Rule 16b-3 will not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan. |
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(l) |
Consultant means any individual, including an advisor, who is providing services to the
Company or any Subsidiary or who has accepted an offer of service or consultancy from the Company or any Subsidiary. |
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(m) |
Director means any member of the Board. |
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(n) |
Effective Date means the date immediately after the Closing Date as defined in the Merger
Agreement. |
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(o) |
Employee means any individual, including any officer, employed by the Company or any
Subsidiary or any prospective employee or officer who has accepted an offer of employment from the Company or any Subsidiary, with the status of employment determined based upon such factors as are deemed appropriate by the Committee in its
discretion, subject to any requirements of the Code or applicable laws. |
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(p) |
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and
the rules, regulations and guidance thereunder. Any reference to a provision in the Exchange Act shall include any successor provision thereto. |
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(q) |
Fair Market Value means (i) with respect to Shares, (A) the closing price of a
Share on the trading day immediately preceding the date of determination (or, if there is no reported sale on such date, on the last preceding date on which a sale occurred, as reported in The Wall Street Journal or another source that the
Committee deems reliable), on the principal stock market or exchange on which the Shares are quoted or traded, or (B) if Shares are not so quoted or traded, the fair market value of a Share as determined by the Committee, and (ii) with
respect to any property other than Shares, the fair market value of such property determined by such methods or procedures as shall be established from time to time by the Committee acting in good faith after taking into consideration all factors
which it deems appropriate, including, without limitation, any independent third-party valuation or the requirements of Sections 409A and 422 of the Code. |
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(r) |
Incentive Stock Option means an option representing the right to purchase Shares from the
Company, granted pursuant to the provisions of Section 6, that meets the requirements of Section 422 of the Code. |
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(s) |
Intrinsic Value means, with respect to an Option or SAR Award, (i) the excess, if any,
of the price or implied price per Share in a Change in Control or other event over (ii) the exercise or hurdle price of such Award multiplied by (iii) the number of Shares covered by such Award. |
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(t) |
Non-Change in Control Person means (i) any
employee plan established by the Company or any Subsidiary, (ii) the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by stockholders of the Company in substantially the same proportions as their ownership of the Company. |
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(u) |
Non-Qualified Stock Option means an option
representing the right to purchase Shares from the Company, granted pursuant to Section 6, that is not an Incentive Stock Option. |
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(v) |
Option means an Incentive Stock Option or a
Non-Qualified Stock Option. |
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(w) |
Other Cash-Based Award means an Award granted pursuant to Section 11, including cash
awarded as a bonus or upon the attainment of specified performance criteria or otherwise as permitted under the Plan. |
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(x) |
Other Stock-Based Award means an Award granted pursuant to Section 11 that may be
denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Shares or factors that may influence the value of Shares, including convertible or exchangeable debt securities, other rights convertible or
exchangeable into Shares, purchase rights for Shares, dividend rights or dividend equivalent rights or Awards with value and payment contingent upon performance of the Company or business units thereof or any other factors designated by the
Committee. |
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(y) |
Participant means the recipient of an Award granted under the Plan. |
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(z) |
Performance Award means an Award granted pursuant to Section 10. |
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(aa) |
Performance Period means the period established by the Committee with respect to any
Performance Award during which the performance goals specified by the Committee with respect to such Award are to be measured. |
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(bb) |
Person has the meaning ascribed to such term in Section 3(a)(9) of the Exchange Act and
used in Sections 13(d) and 14(d) thereof, including a group as defined in Section 13(d) thereof. |
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(cc) |
Restricted Stock means any Share subject to certain restrictions and forfeiture conditions,
granted pursuant to Section 8. |
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(dd) |
RSU means a contractual right granted pursuant to Section 9 that is denominated in
Shares. Each RSU represents a right to receive the value of one Share (or a percentage of such value) in cash, Shares or a combination thereof. Awards of RSUs may include the right to receive dividend equivalents. |
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(ee) |
SAR means any right granted pursuant to Section 7 to receive upon exercise by the
Participant or settlement, in cash, Shares or a combination thereof, the excess of (i) the Fair Market Value of one Share on the date of exercise or settlement over (ii) the exercise or hurdle price of the right on the date of grant (as
may be adjusted pursuant to Section 5(c) or otherwise). |
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(ff) |
SEC means the Securities and Exchange Commission. |
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(gg) |
Share means a share of Capital Stock. |
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(hh) |
Subsidiary means an entity of which the Company, directly or indirectly, holds all or a
majority of the value of the outstanding equity interests of such entity or a majority of the voting power with respect to the voting securities of such entity. |
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(ii) |
Substitute Award means an Award granted in assumption of, or in substitution for, an
outstanding award previously granted by a company or other business acquired by the Company or with which the Company combines. |
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(jj) |
Termination of Service means, in the case of a Participant who is an Employee, cessation of
the employment relationship such that the Participant is no longer an employee of the Company or any Subsidiary, or, in the case of a Participant who is a Consultant or non-employee Director, the date the
performance of services for the Company or any Subsidiary has ended; provided, however, that in the case of a Participant who is an Employee, the transfer of employment from the Company to a Subsidiary, from a Subsidiary to the
Company, from one Subsidiary to another Subsidiary or, unless the Committee determines otherwise, the cessation of employee status but the continuation of the performance of services for the Company or a Subsidiary as a Director or Consultant, or
the cessation of Director or Consultant status but the continuation of the performance of services for the Company or a Subsidiary as an Employee, shall not be deemed a cessation of service that would constitute a Termination of Service;
provided, further, that a Termination of Service shall be deemed to occur for a Participant employed by, or performing services for, a Subsidiary when a Subsidiary ceases to be a Subsidiary unless such Participants employment or
service continues with the Company or another Subsidiary. Notwithstanding the foregoing, with respect to any Award subject to Section 409A of the Code (and not exempt therefrom), a Termination of Service occurs when a Participant experiences a
separation of service (as such term is defined under Section 409A of the Code). |
Section 3.
Eligibility.
|
(a) |
Any Employee, Director or Consultant shall be eligible to be selected to receive an Award under the Plan, to
the extent that an offer of an Award or a receipt of such Award is permitted by the terms herein, applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations. |
|
(b) |
Holders of options and other types of awards granted by a company or other business that is acquired by the
Company or with which the Company combines are eligible for grants of Substitute Awards under the Plan to the extent permitted under applicable regulations of any stock exchange on which the Company is listed. |
Section 4. Administration.
|
(a) |
Administration of the Plan. The Plan shall be administered by the Committee. All decisions of the
Committee shall be final, conclusive and binding upon all parties, including the Company, its shareholders, Participants and any Beneficiaries thereof. The Committee may issue rules and regulations for administration of the Plan.
|
5
|
(b) |
Delegation of Authority. To the extent permitted by applicable law, including under Section 157(c)
of the Delaware General Corporation Law, the Committee may delegate to one or more officers of the Company some or all of its authority under the Plan, including the authority to grant Options and SARs or other Awards in the form of Share rights
(except that such delegation shall not be applicable to any Award for a Person then covered by Section 16 of the Exchange Act), and the Committee may delegate to one or more committees of the Board (which may consist of solely one Director)
some or all of its authority under the Plan, including the authority to grant all types of Awards, in accordance with applicable law. |
|
(c) |
Authority of Committee. Subject to the terms of the Plan and applicable law, the Committee (or its
delegate) shall have full discretion and authority to: (i) designate Participants; (ii) determine the type or types of Awards (including Substitute Awards) to be granted to each Participant under the Plan; (iii) determine the number
of Shares to be covered by (or with respect to which payments, rights or other matters are to be calculated in connection with) Awards; (iv) determine the terms and conditions of any Award and prescribe the form of each Award Agreement which
need not be identical for each Participant; (v) determine whether, to what extent, under what circumstances and by which methods Awards may be settled or exercised in cash, Shares, other Awards, other property, net settlement, or any
combination thereof, or canceled, forfeited or suspended, and the method or methods by which Awards may be settled, exercised, canceled, forfeited or suspended; (vi) determine whether, to what extent and under what circumstances cash, Shares,
other Awards, other property and other amounts payable with respect to an Award under the Plan shall be deferred either automatically or at the election of the holder thereof or of the Committee; (vii) amend terms or conditions of any
outstanding Awards; (viii) accelerate the vesting or lapsing of restrictions of any Awards; (ix) correct any defect, supply any omission and reconcile any inconsistency in the Plan or any Award, in the manner and to the extent it shall
deem desirable to carry the Plan into effect; (x) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan; (xi) establish, amend, suspend or waive such rules and regulations and appoint
such agents, trustees, brokers, depositories and advisors and determine such terms of their engagement as it shall deem appropriate for the proper administration of the Plan and due compliance with applicable law, stock market or exchange rules and
regulations or accounting or tax rules and regulations; (xii) (1) reduce the exercise price of any outstanding Option or SAR, (2) cancel any outstanding Option or SAR and grant in substitution therefor of (A) a new Option, SAR,
Restricted Stock award, RSU award or other Award, (B) cash and/or (C) other valuable consideration (as determined by the Board) or (3) take any other action that is treated as a repricing under generally accepted accounting
principles; and (xiii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan and due compliance with applicable law, stock market or exchange rules and
regulations or accounting or tax rules and regulations. Notwithstanding anything to the contrary contained herein, the Board may, in its sole discretion, at any time and from time to time, grant Awards or administer the Plan. In any such case, the
Board shall have all of the authority and responsibility granted to the Committee herein. |
Section 5. Shares
Available for Awards.
|
(a) |
Subject to adjustment as provided in Section 5(c)(i) and except for Substitute Awards, the maximum number
of Shares available for issuance under the Plan as of the Effective Date shall not exceed 15%1 Shares. The total number of Shares available for issuance under the Plan shall be increased on the
first day of each Company fiscal year following the Effective Date in an amount equal to the lesser of (i) 2% of the total number of Shares of the Companys Capital Stock on the last Business Day of the immediately preceding fiscal year and
(ii) such smaller number of Shares as determined by the Board in its discretion. |
1 |
Note to Draft: Insert number equal to 15% of the fully diluted shares of Capital Stock of the Company as
of the Closing. |
6
|
(b) |
If any Award is forfeited, cancelled, expires, terminates or otherwise lapses or is settled in cash, in whole
or in part, without the delivery of Shares, then the shares covered by such forfeited, expired, terminated or lapsed award shall again be available as Shares for grant under the Plan. Notwithstanding anything to the contrary contained herein, the
following Shares shall not be added to the Shares authorized for grant under Section 5(a) and shall not be available for future grants of Awards: (a) Shares withheld in respect of taxes or tendered or withheld to pay the exercise price of
Options; (b) Shares subject to a SAR Award that are not issued in connection with the stock settlement of the SAR on exercise thereof; and (c) Shares purchased on the open market with the cash proceeds from the exercise of Options.
|
|
(c) |
In the event that the Committee determines that, as a result of any dividend or other distribution (other than
an ordinary dividend or distribution), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, separation, rights offering, split-up,
spin-off, combination, repurchase or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company, issuance of Shares
pursuant to the anti-dilution provisions of securities of the Company, or other similar corporate transaction or event affecting the Shares, or of changes in applicable laws, regulations or accounting principles, an adjustment is appropriate in
order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Committee shall, subject to compliance with Section 409A of the Code and other applicable law, adjust
equitably so as to ensure no undue enrichment or harm (including by payment of cash), any or all of: |
|
(i) |
the number and type of Shares (or other securities) which thereafter may be made the subject of Awards,
including the aggregate limits specified in Section 5(a) and Section 5(f) and the individual limits specified in Section 5(e); |
|
(ii) |
the number and type of Shares (or other securities) subject to outstanding Awards; |
|
(iii) |
the grant, purchase, exercise or hurdle price with respect to any Award or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Award; and |
|
(iv) |
any performance conditions applicable to such Awards; |
provided, however, that the number of Shares subject to any Award denominated in Shares shall always be a whole number.
|
(d) |
Any Shares delivered pursuant to an Award may consist, in whole or in part, of authorized and unissued Shares
or Shares acquired by the Company on the open market. |
|
(e) |
Subject to adjustment as provided in Section 5(c)(i), no Participant who is a non-employee Director may receive, as compensation for services as a non-employee Director during any fiscal year of the Company, cash compensation and/or the value of Awards
(determined as of the grant date in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, or any successor thereto) which total more than [$750,000] in the aggregate, increased to [$1,000,000] in the
fiscal year of a non-employee Directors initial service as a non-employee Director. Notwithstanding the foregoing, the limits in this Section 5(e) shall not
apply to cash compensation and/or Awards made in connection with the closing of the transactions contemplated by the Merger Agreement. |
|
(f) |
Subject to adjustment as provided in Section 5(c)(i), the maximum number of Shares available for issuance
with respect to Incentive Stock Options shall not exceed [15%]. |
7
Section 6. Options. The Committee is authorized to grant Options to Participants
with the following terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine:
|
(a) |
The exercise price per Share under an Option shall be determined by the Committee at the time of grant;
provided, however, that, except in the case of Substitute Awards, such exercise price shall not be less than the Fair Market Value of a Share on the date of grant of such Option. |
|
(b) |
The term of each Option shall be fixed by the Committee but shall not exceed 10 years from the date of grant of
such Option. The Committee shall determine the time or times at which an Option becomes vested and exercisable in whole or in part. |
|
(c) |
Subject to any Company insider trading policy (including blackout periods) and applicable laws, the Committee
shall determine the method or methods by which, and the form or forms, including cash, Shares, other Awards, other property, net settlement, broker-assisted cashless exercise or any combination thereof, having a Fair Market Value on the exercise
date equal to the exercise price of the Shares as to which the Option shall be exercised, in which payment of the exercise price with respect thereto may be made or deemed to have been made. |
|
(d) |
No grant of Options may be accompanied by a tandem award of dividend equivalents or provide for dividends,
dividend equivalents or other distributions to be paid on such Options (except as provided under Section 5(c)). |
|
(e) |
Any Incentive Stock Option granted under the Plan shall comply in all respects with the provisions of
Section 422 of the Code. Incentive Stock Options may be granted only to employees of the Company or of a parent or subsidiary corporation (as defined in Section 424 of the Code). By accepting an Incentive Stock Option, the Participant
agrees to give prompt notice to the Company of dispositions or other transfers (other than in connection with a Change in Control) of Shares acquired under the Option made within (i) two years from the grant date of the Option or (ii) one
year after the transfer of such Shares to the Participant, specifying the date of the disposition or other transfer and the amount the Participant realized, in cash, other property, assumption of indebtedness or other consideration, in such
disposition or other transfer. Neither the Company nor the Committee will be liable to a Participant, or any other party, if an Incentive Stock Option fails or ceases to qualify as an incentive stock option under Section 422 of the
Code. Any Incentive Stock Option or portion thereof that fails to qualify as an incentive stock option under Section 422 of the Code for any reason, including becoming exercisable with respect to Shares having a fair market value
exceeding the $100,000 limitation under Treasury Regulation Section 1.422 -4, will be a Non-Qualified Stock Option. |
Section 7. Stock Appreciation Rights. The Committee is authorized to grant SARs to Participants with the following terms and
conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine:
|
(a) |
SARs may be granted under the Plan to Participants either alone (freestanding) or in addition to
other Awards granted under the Plan (tandem) and may, but need not, relate to a specific Option granted under Section 6. |
|
(b) |
The exercise or hurdle price per Share under a SAR shall be determined by the Committee; provided,
however, that, except in the case of Substitute Awards, such exercise or hurdle price shall not be less than the Fair Market Value of a Share on the date of grant of such SAR. |
8
|
(c) |
The term of each SAR shall be fixed by the Committee but shall not exceed 10 years from the date of grant of
such SAR. The Committee shall determine the time or times at which a SAR may be exercised or settled in whole or in part. |
|
(d) |
Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of Shares
subject to the SAR multiplied by the excess, if any, of the Fair Market Value of one Share on the exercise date over the exercise or hurdle price of such SAR. The Company shall pay such excess in cash, in Shares valued at Fair Market Value, or any
combination thereof, as determined by the Committee. |
|
(e) |
No grant of SARs may be accompanied by a tandem award of dividend equivalents or provide for dividends,
dividend equivalents or other distributions to be paid on such SARs (except as provided under Section 5(c)). |
Section 8. Restricted Stock. The Committee is authorized to grant Awards of Restricted Stock to Participants with the following
terms and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine:
|
(a) |
The Award Agreement shall specify the vesting schedule. |
|
(b) |
Awards of Restricted Stock shall be subject to such restrictions as the Committee may impose, which
restrictions may lapse separately or in combination at such time or times, in such installments or otherwise, as the Committee may deem appropriate. |
|
(c) |
Subject to the restrictions set forth in the applicable Award Agreement, a Participant generally shall have the
rights and privileges of a stockholder with respect to Awards of Restricted Stock, including the right to vote such Shares of Restricted Stock and the right to receive dividends. |
|
(d) |
The Committee may, in its discretion, specify in the applicable Award Agreement that any or all dividends or
other distributions paid on Awards of Restricted Stock prior to vesting be paid either in cash or in additional Shares and either on a current or deferred basis and that such dividends or other distributions may be reinvested in additional Shares,
which may be subject to the same restrictions as the underlying Awards. |
|
(e) |
Any Award of Restricted Stock may be evidenced in such manner as the Committee may deem appropriate, including
book-entry registration. |
|
(f) |
The Committee may provide in an Award Agreement that an Award of Restricted Stock is conditioned upon the
Participant making or refraining from making an election with respect to the Award under Section 83(b) of the Code. If a Participant makes an election pursuant to Section 83(b) of the Code with respect to an Award of Restricted Stock, the
Participant shall be required to file promptly a copy of such election with the Company and the applicable Internal Revenue Service office. |
Section 9. RSUs. The Committee is authorized to grant Awards of RSUs to Participants with the following terms and conditions and
with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine:
|
(a) |
The Award Agreement shall specify the vesting schedule and the delivery schedule (which may include deferred
delivery later than the vesting date). |
|
(b) |
Awards of RSUs shall be subject to such restrictions as the Committee may impose, which restrictions may lapse
separately or in combination at such time or times, in such installments or otherwise, as the Committee may deem appropriate. |
9
|
(c) |
An RSU shall not convey to the Participant the rights and privileges of a stockholder with respect to the Share
subject to the RSU, such as the right to vote or the right to receive dividends, unless and until a Share is issued to the Participant to settle the RSU. |
|
(d) |
The Committee may, in its discretion, specify in the applicable Award Agreement that any or all dividend
equivalents or other distributions paid on Awards of RSUs prior to vesting or settlement, as applicable, be paid either in cash or in additional Shares and either on a current or deferred basis and that such dividend equivalents or other
distributions may be reinvested in additional Shares, which may be subject to the same restrictions as the underlying Awards. |
|
(e) |
Shares delivered upon the vesting and settlement of an RSU Award may be evidenced in such manner as the
Committee may deem appropriate, including book-entry registration. |
|
(f) |
The Committee may determine the form or forms (including cash, Shares, other Awards, other property or any
combination thereof) in which payment of the amount owing upon settlement of any RSU Award may be made. |
Section 10. Performance Awards. The Committee is authorized to grant Performance Awards to Participants with the following terms
and conditions and with such additional terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Committee shall determine:
|
(a) |
Performance Awards may be denominated as a cash amount, number of Shares or units or a combination thereof and
are Awards which may be earned upon achievement or satisfaction of performance conditions specified by the Committee. In addition, the Committee may specify that any other Award shall constitute a Performance Award by conditioning the grant to a
Participant or the right of a Participant to exercise the Award or have it settled, and the timing thereof, upon achievement or satisfaction of such performance conditions as may be specified by the Committee. The Committee may use such business
criteria and other measures of performance as it may deem appropriate in establishing any performance conditions, which may include but are not limited to: |
|
(i) |
revenue measures (including, but not limited to, total revenue, gross revenue, net revenue, subscription
revenue, asset-based fees, recurring or non-recurring revenues, revenue growth, product revenue growth and net sales); |
|
(ii) |
income measures (including, but not limited to, gross income, net income,
pre- or after-tax income (before or after allocation of corporate overhead and bonus), income from continuing operations, operating income (before or after taxes), non-interest income, net income after cost of capital, net interest income, fee income and income measures excluding the impact of acquisitions and dispositions); |
|
(iii) |
earnings measures (including, but not limited to, earnings before taxes, earnings before interest and taxes,
earnings before interest, taxes, depreciation and amortization, earnings growth, earnings per share, book value per share, margins, operating margins, gross margins, contribution margins (excluding general and administrative costs), cash margins,
margins realized on delivered services, profitability of an identifiable segment, business unit or product, maintenance or improvement of profit or other margins and earnings measures excluding the impact of acquisitions and dispositions);
|
|
(iv) |
cash flow measures (including, but not limited to, cash flow (before or after dividends), operating cash flow,
free cash flow, discounted cash flow, cash flow return on investment and cash flow in excess of cost of capital); |
|
(v) |
return measures (including, but not limited to, return on equity, return on tangible common equity, return on
assets or net assets, return on risk-weighted assets, return on capital (including return on total capital or return on invested capital) and appreciation in and/or maintenance of the price of shares); |
10
|
(vi) |
share price measures (including, but not limited to, total shareholder return, share price, appreciation in
and/or maintenance of share price and market capitalization); |
|
(vii) |
balance sheet/risk management measures (including, but not limited to,
year-end cash, satisfactory internal or external audits, financial ratings, shareholders equity, assets, tangible equity, charge-offs, net charge-offs,
non-performing assets and liquidity); |
|
(viii) |
efficiency or expense measures (including, but not limited to, expenses, expense management or reduction, non-interest expense, operating/efficiency ratios improvement in or attainment of expense levels or working capital levels (including cash and accounts receivable), reduction in income tax expense or income tax
rate, corporate expenses as a percentage of revenue, research and development as a percentage of revenue, sales efficiency, selling and marketing efficiency and service efficiency); |
|
(ix) |
strategic measures (including, but not limited to, market share, debt reduction, customer growth, long-term
client value growth, research and development achievements, regulatory compliance and achievements (including submitting or filing applications or other documents with regulatory authorities or receiving approval of any such applications or other
documents), strategic partnerships or transactions and co-development, co-marketing, profit sharing, joint venture or other similar arrangements, implementation,
completion or attainment of measurable objectives with respect to research, development, commercialization, products or projects, production volume levels, acquisitions and divestitures, accuracy, stability, quality or performance of ratings and
recruiting and maintaining personnel); and |
|
(x) |
other measures (including, but not limited to, gross profits, economic profit, comparisons with various stock
market indices, cost of capital or assets under management, improvements in capital structure, days sales outstanding, sales performance, sales quota attainment, cross-sales, recurring sales, one-time sales,
net new sales, cancellations, retention rates, new benchmark mandates, new exchange traded fund launches, financing and other capital raising transactions (including sales of the Companys equity or debt securities); factoring transactions;
sales or licenses of the Companys assets, including its intellectual property, whether in a particular jurisdiction or territory or globally; or through partnering transactions). |
Subject to the terms of the Plan, the performance goals to be achieved during any Performance Period, the length of any Performance Period, the
amount of any Performance Award granted and the amount of any payment or transfer to be made pursuant to any Performance Award shall be determined by the Committee.
|
(b) |
If the Committee determines that a change in the business, operations, corporate structure or capital structure
of the Company, or the manner in which the Company conducts its business, or other events or circumstances render the performance objectives unsuitable, the Committee may modify the performance objectives or the related minimum acceptable level of
achievement, in whole or in part, as the Committee deems appropriate and equitable such that it does not provide any undue enrichment or harm. Performance measures may vary from Performance Award to Performance Award and from Participant to
Participant, and may be established on a stand-alone basis, in tandem or in the alternative. The Committee shall have the power to impose such other restrictions on Awards subject to this Section 10(b) as it may deem necessary or appropriate to
ensure that such Awards satisfy all requirements of any applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations. |
11
|
(c) |
Settlement of Performance Awards shall be in cash, Shares, other Awards, other property, net settlement, or any
combination thereof, as determined in the discretion of the Committee. |
|
(d) |
A Performance Award shall not convey to the Participant the rights and privileges of a stockholder with respect
to the Share subject to the Performance Award, such as the right to vote (except as relates to Restricted Stock) or the right to receive dividends, unless and until Shares are issued to the Participant to settle the Performance Award. The Committee,
in its sole discretion, may provide that a Performance Award shall convey the right to receive dividend equivalents on the Shares underlying the Performance Award with respect to any dividends declared during the period that the Performance Award is
outstanding, in which case, such dividend equivalent rights shall accumulate and shall be paid in cash or Shares on the settlement date of the Performance Award, subject to the Participants earning of the Shares underlying the Performance
Awards with respect to which such dividend equivalents are paid upon achievement or satisfaction of performance conditions specified by the Committee. Shares delivered upon the vesting and settlement of a Performance Award may be evidenced in such
manner as the Committee may deem appropriate, including book-entry registration. For the avoidance of doubt, unless otherwise determined by the Committee, no dividend equivalent rights shall be provided with respect to any Shares subject to
Performance Awards that are not earned or otherwise do not vest or settle pursuant to their terms. |
|
(e) |
The Committee may, in its discretion, increase or reduce the amount of a settlement otherwise to be made in
connection with a Performance Award. |
Section 11. Other Cash-Based Awards and Other Stock-Based Awards. The
Committee is authorized, subject to limitations under applicable law, to grant Other Cash-Based Awards (either independently or as an element of or supplement to any other Award under the Plan) and Other Stock-Based Awards. The Committee shall
determine the terms and conditions of such Awards. Shares delivered pursuant to an Award in the nature of a purchase right granted under this Section 11 shall be purchased for such consideration, and paid for at such times, by such methods and
in such forms, including cash, Shares, other Awards, other property, net settlement, broker-assisted cashless exercise or any combination thereof, as the Committee shall determine; provided that the purchase price therefor shall not be less
than the Fair Market Value of such Shares on the date of grant of such right.
Section 12. Effect of Termination of Service or a
Change in Control on Awards.
|
(a) |
The Committee may provide, by rule or regulation or in any applicable Award Agreement, or may determine in any
individual case, the circumstances in which, and the extent to which, an Award may be exercised, settled, vested, paid or forfeited in the event of the Participants Termination of Service prior to the end of a Performance Period or vesting,
exercise or settlement of such Award. |
|
(b) |
In the event of a Change in Control, the Committee may, in its sole discretion, and on such terms and
conditions as it deems appropriate, take any one or more of the following actions with respect to any outstanding Award, which need not be uniform with respect to all Participants and/or Awards: |
|
(i) |
continuation or assumption of such Award by the Company (if it is the surviving corporation) or by the
successor or surviving corporation or its parent; |
|
(ii) |
substitution or replacement of such Award by the successor or surviving corporation or its parent with cash,
securities, rights or other property to be paid or issued, as the case may be, by the successor or surviving corporation (or a parent or subsidiary thereof), with substantially the same terms and value as such Award (including any applicable
performance targets or criteria with respect thereto); |
12
|
(iii) |
acceleration of the vesting of such Award and the lapse of any restrictions thereon and, in the case of an
Option or SAR Award, acceleration of the right to exercise such Award during a specified period (and the termination of such Option or SAR Award without payment of any consideration therefor to the extent such Award is not timely exercised), in each
case, upon (A) the Participants involuntary Termination of Service (including upon a termination of the Participants employment by the Company (or a successor corporation or its parent) without cause or by the
Participant for good reason, as such terms may be defined in the applicable Award Agreement and/or the Participants employment agreement or offer letter, as the case may be) or (B) the failure of the successor or surviving
corporation (or its parent) to continue or assume such Award; |
|
(iv) |
in the case of a Performance Award, determination of the level of attainment of the applicable performance
condition(s); and |
|
(v) |
cancellation of such Award in consideration of a payment, with the form, amount and timing of such payment
determined by the Committee in its sole discretion, subject to the following: (A) such payment shall be made in cash, securities, rights and/or other property; (B) the amount of such payment shall equal the value of such Award, as
determined by the Committee in its sole discretion; provided that, in the case of an Option or SAR Award, if such value equals the Intrinsic Value of such Award, such value shall be deemed to be valid; provided further that, if the
Intrinsic Value of an Option or SAR Award is equal to or less than zero, the Committee may, in its sole discretion, provide for the cancellation of such Award without payment of any consideration therefor (for the avoidance of doubt, in the event of
a Change in Control, the Committee may, in its sole discretion, terminate any Option or SAR Awards for which the exercise or hurdle price is equal to or exceeds the per Share value of the consideration to be paid in the Change in Control transaction
without payment of consideration therefor); and (C) such payment shall be made promptly following such Change in Control or on a specified date or dates following such Change in Control; provided that the timing of such payment shall
comply with Section 409A of the Code; and |
|
(vi) |
cancellation of such Award without payment of any consideration therefor, to the extent such Award is not
vested as of immediately prior to such Change in Control. |
Notwithstanding the foregoing, in the event the Committee
fails to take one or more of the actions described in this Section 12(b) (in addition to making any needed determinations with respect to Performance Awards) with respect to an outstanding Award and such Award will not otherwise be continued or
assumed, substituted or replaced or cancelled in exchange for a payment on terms substantially consistent with those set forth in Section 12(b)(v) above, such Award will (x) accelerate in full, but with the level of attainment of any
performance conditions determined by the Committee and any portion of such Award for which the performance conditions are not satisfied forfeited and (y) be cancelled in exchange for a payment on terms substantially consistent than those set
forth in Section 12(b)(v) above.
Section 13. General Provisions Applicable to Awards.
|
(a) |
Awards shall be granted for such cash or other consideration (which may include services), as applicable, as
the Committee determines; provided that in no event shall Awards be issued for less than such minimal consideration as may be required by applicable law. |
13
|
(b) |
Awards may, in the discretion of the Committee, be granted either alone or in addition to or in tandem with any
other Award or any award granted under any other plan of the Company. Awards granted in addition to or in tandem with other Awards, or in addition to or in tandem with awards granted under any other plan of the Company, may be granted either at the
same time as or at a different time from the grant of such other Awards or awards. |
|
(c) |
Subject to the terms of the Plan, payments or transfers to be made by the Company to a Participant upon the
grant, exercise or settlement of an Award may be made in the form of cash, Shares, other Awards, other property, net settlement, or any combination thereof, as determined by the Committee in its discretion at the time of grant, and may be made in a
single payment or transfer, in installments or on a deferred basis, in each case in accordance with rules and procedures established by the Committee. Such rules and procedures may include provisions for the payment or crediting of reasonable
interest on installment or deferred payments or the grant or crediting of dividend equivalents in respect of installment or deferred payments. |
|
(d) |
Except as may be permitted by the Committee or as specifically provided in an Award Agreement, (i) no
Award and no right under any Award shall be assignable, alienable, saleable or transferable by a Participant other than by will or pursuant to Section 13(e) and (ii) during a Participants lifetime, each Award, and each right under
any Award, shall be exercisable (to the extent such Award is exercisable) only by such Participant or, if permissible under applicable law, by such Participants guardian or legal representative. The provisions of this Section 13(d) shall
not apply to any Award that has been fully exercised or settled, as the case may be, and shall not preclude forfeiture of an Award in accordance with the terms thereof. |
|
(e) |
If permitted by the Committee, a Participant may designate a Beneficiary or change a previous Beneficiary
designation only at such times as prescribed by the Committee, in its sole discretion, and only by using forms and following procedures approved or accepted by the Committee for that purpose. |
|
(f) |
All certificates for Shares and/or other securities delivered under the Plan , in each case to the extent
certificated, pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations and other requirements of the SEC, any
stock market or exchange upon which such Shares or other securities are then quoted, traded or listed, and any applicable securities laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate
reference to such restrictions. |
|
(g) |
The Committee may impose restrictions on any Award with respect to
non-competition, non-solicitation, confidentiality and other restrictive covenants as it deems necessary or appropriate in its sole discretion, subject to and in
accordance with applicable law. |
Section 14. Amendments and Terminations.
|
(a) |
Amendment or Termination of the Plan. Except to the extent prohibited by applicable law and unless
otherwise expressly provided in an Award Agreement or in the Plan, the Board may amend, alter, suspend, discontinue or terminate the Plan or any portion thereof at any time; provided, however, that no such amendment, alteration,
suspension, discontinuation or termination shall be made without (i) shareholder approval if such approval is required by applicable law or the rules of the stock market or exchange, if any, on which the Shares are principally quoted or traded
or (ii) subject to Section 5(c) and Section 12, the consent of the affected Participant, if such action would materially adversely affect the rights of such Participant under any outstanding Award, except (x) to the extent any
such amendment, alteration, suspension, discontinuance or termination is made to cause the Plan to comply with applicable law, stock market or exchange rules and regulations or |
14
|
accounting or tax rules and regulations or (y) to impose any clawback or recoupment provisions on any Awards (including any amounts or benefits arising from such Awards) in accordance with
Section 18. Notwithstanding anything to the contrary in the Plan, the Committee may amend the Plan, or create sub-plans, in such manner as may be necessary to enable the Plan to achieve its stated
purposes in any jurisdiction in a tax-efficient manner and in compliance with local rules and regulations. |
|
(b) |
Dissolution or Liquidation. In the event of the dissolution or liquidation of the Company, each Award
shall terminate immediately prior to the consummation of such action, unless otherwise determined by the Committee. |
|
(c) |
Terms of Awards. The Committee may waive any conditions or rights under, amend any terms of, or amend,
alter, suspend, discontinue or terminate any Award theretofore granted, prospectively or retroactively, without the consent of any relevant Participant or holder or Beneficiary of an Award; provided, however, that, subject to
Section 5(c) and Section 12, no such action shall materially adversely affect the rights of any affected Participant or holder or Beneficiary under any Award theretofore granted under the Plan, except (x) to the extent any such action
is made to cause the Plan to comply with applicable law, stock market or exchange rules and regulations or accounting or tax rules and regulations (y) to impose any clawback or recoupment provisions on any Awards (including any
amounts or benefits arising from such Awards) in accordance with Section 18 or (z) to the extent any such action is required to comply with Section 409A of the Code. The Committee shall be authorized to make adjustments in the terms
and conditions of, and the criteria included in, Awards in recognition of events (including the events described in Section 5(c)) affecting the Company, or the financial statements of the Company, or of changes in applicable laws, regulations
or accounting principles, whenever the Committee determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan. |
Section 15. Miscellaneous.
|
(a) |
No Employee, Consultant, Director, Participant, or other Person shall have any claim to be granted any Award
under the Plan, and there is no obligation for uniformity of treatment of employees, Participants or holders or Beneficiaries of Awards under the Plan. The terms and conditions of Awards need not be the same with respect to each recipient. Any Award
granted under the Plan shall be a one-time Award that does not constitute a promise of future grants. The Company, in its sole discretion, maintains the right to make available future grants under the Plan.
|
|
(b) |
The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of,
or to continue to provide services to, the Company or any Subsidiary. Further, the Company or any applicable Subsidiary may at any time dismiss a Participant, free from any liability, or any claim under the Plan, unless otherwise expressly provided
in the Plan or in any Award Agreement or in any other agreement binding on the parties. The receipt of any Award under the Plan is not intended to confer any rights on the receiving Participant except as set forth in the applicable Award Agreement.
|
|
(c) |
Nothing contained in the Plan shall prevent the Company from adopting or continuing in effect other or
additional compensation arrangements, and such arrangements may be either generally applicable or applicable only in specific cases. |
|
(d) |
The Committee may authorize the Company to withhold from any Award granted or any payment due or transfer made
under any Award or under the Plan or from any compensation or other amount owing to the Participant the amount (in cash, Shares, other Awards, other property, net settlement, or any combination thereof) of applicable withholding taxes due in respect
of an Award, its exercise or settlement or any payment or |
15
|
transfer under such Award or under the Plan and to take such other action (including providing for elective payment of such amounts in cash or Shares by such Participant) as may be necessary to satisfy all obligations
for the payment of such taxes and, unless otherwise determined by the Committee in its discretion, to the extent such withholding would not result in liability classification of such Award (or any portion thereof) pursuant to FASB ASC Subtopic 718-10, which, for the avoidance of doubt, is intended to permit withholding up to the maximum statutory amount applicable to a Participant. |
|
(e) |
If any provision of the Plan or any Award Agreement is or becomes or is deemed to be invalid, illegal or
unenforceable in any jurisdiction, or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it
cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award Agreement, such provision shall be stricken as to such jurisdiction, Person or Award, and the remainder
of the Plan and any such Award Agreement shall remain in full force and effect. |
|
(f) |
Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company pursuant to an Award, such right shall be no greater than the right of any
unsecured general creditor of the Company. |
|
(g) |
No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash or other securities shall be paid or transferred in lieu of any fractional Shares, or whether such fractional Shares or any rights thereto shall be canceled, terminated or otherwise eliminated. |
|
(h) |
Awards may be granted to Participants who are non-United States
nationals or employed or providing services outside the United States, or both, on such terms and conditions different from those applicable to Awards to Participants who are employed or providing services in the United States as may, in the
judgment of the Committee, be necessary or desirable to recognize differences in local law, tax policy or custom. The Committee also may impose conditions on the exercise or vesting of Awards in order to minimize the Companys obligation with
respect to tax equalization for Participants on assignments outside their home country. |
Section 16. Effective
Date of the Plan. The Plan was approved by the Board on [__], 2022. The Plan shall become effective as of the Effective Date, subject to its approval by the shareholders of the Company prior to the Effective Date. If the Plan is not approved by
the shareholders of the Company or if the Merger Agreement is terminated prior to the consummation of the transactions contemplated thereby, the Plan will not become effective.
Section 17. Term of the Plan. No Award shall be granted under the Plan after the earliest to occur of (i) the 10-year anniversary of the Effective Date; (ii) the maximum number of Shares available for issuance under the Plan have been issued; or (iii) the Board terminates the Plan in accordance with
Section 14(a). However, unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award theretofore granted may extend beyond such date, and the authority of the Committee to amend, alter, adjust, suspend,
discontinue or terminate any such Award, or to waive any conditions or rights under any such Award, and the authority of the Board to amend the Plan, shall extend beyond such date.
Section 18. Cancellation or Clawback of Awards. The Committee shall have full authority to implement any policies and
procedures necessary to comply with Section 10D of the Exchange Act and any rules promulgated thereunder and any other regulatory regimes. Notwithstanding anything to the contrary contained herein, any Awards granted under the Plan (including
any amounts or benefits arising from such Awards) shall be subject to any clawback or recoupment arrangements or policies the Company has in place from time to time, and the Committee may, to the extent permitted by applicable law and stock exchange
rules or by any applicable Company policy or arrangement, and shall, to the extent required, cancel or require reimbursement of any Awards granted to the Participant or any Shares issued or cash received upon vesting, exercise or settlement of any
such Awards or sale of Shares underlying such Awards.
16
Section 19. Section 409A of the Code. With respect to Awards
subject to Section 409A of the Code, the Plan is intended to comply with the requirements of Section 409A of the Code, and the provisions of the Plan and any Award Agreement shall be interpreted in a manner that satisfies the requirements
of Section 409A of the Code, and the Plan shall be operated accordingly. If any provision of the Plan or any term or condition of any Award would otherwise frustrate or conflict with this intent, the provision, term or condition shall be
interpreted and deemed amended so as to avoid this conflict. Notwithstanding anything in the Plan to the contrary, if the Board considers a Participant to be a specified employee under Section 409A of the Code at the time of such
Participants separation from service (as defined in Section 409A of the Code), and any amount hereunder is deferred compensation subject to Section 409A of the Code, any distribution of such amount that
otherwise would be made to such Participant with respect to an Award as a result of such separation from service shall not be made until the date that is six months after such separation from service, except to the extent
that earlier distribution would not result in such Participants incurring interest or additional tax under Section 409A of the Code. If an Award includes a series of installment payments (within the meaning of
Section 1.409A -2(b)(2)(iii) of the Treasury Regulations), the Participants right to such series of installment payments shall be treated as a right to a series of separate payments and not as a
right to a single payment, and if an Award includes dividend equivalents (within the meaning of Section 1.409A -3(e) of the Treasury Regulations), the Participants right to such dividend
equivalents shall be treated separately from the right to other amounts under the Award. Notwithstanding the foregoing, the tax treatment of the benefits provided under the Plan or any Award Agreement is not warranted or guaranteed, and in no event
shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by any Participant on account of non-compliance with Section 409A of the Code.
Section 20. Successors and Assigns. The terms of the Plan shall be binding upon and inure to the benefit of the Company and
any successor entity, including any successor entity contemplated by Section 12(b).
Section 21. Data Protection. By
participating in the Plan, the Participant consents to the holding and processing of personal information provided by the Participant to the Company or any of its Affiliates, trustee or third party service provider, for all purposes relating to the
operation of the Plan. These include:
|
(a) |
administering and maintaining Participant records; |
|
(b) |
providing information to the Company, any Subsidiary, trustees of any employee benefit trust, registrars,
brokers or third party administrators of the Plan; |
|
(c) |
providing information to future purchasers or merger partners of the Company or any of its Affiliates, or the
business in which the Participant works; and |
|
(d) |
transferring information about the Participant to any country or territory that may not provide the same
protection for the information as the Participants home country. |
Section 22. Governing Law. The Plan
and each Award Agreement shall be governed by the laws of the State of Delaware, without application of the conflicts of law principles thereof.
17
EXHIBIT M
FORM OF EMPLOYEE STOCK PURCHASE PLAN
Exhibit M
EXHIBIT M
[NEW PUBCO]
2022 EMPLOYEE STOCK PURCHASE PLAN
Section 1. Purpose. This [New PubCo] 2022 Employee Stock Purchase Plan (the Plan) is intended to provide
employees of the Company and its Participating Subsidiaries with an opportunity to acquire a proprietary interest in the Company through the purchase of Shares. The Plan is intended to qualify as an employee stock purchase plan under
Section 423 of the Code and the Plan shall be interpreted in a manner that is consistent with that intent.
Section 2.
Definitions.
|
(a) |
Board means the Board of Directors of the Company. |
|
(b) |
Business Day means a day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to close. |
|
(c) |
Capital Stock [means the Companys common stock, $0.0001 par value].
|
|
(d) |
Code means the Internal Revenue Code of 1986, as amended from time to time, and the rules,
regulations and guidance thereunder. Any reference to a provision in the Code shall include any successor provision thereto. |
|
(e) |
Committee means the Board, unless a committee or subcommittee is designated by the Board,
which may include one or more Company directors or executive officers to the extent permitted under applicable law. If the Board does not designate a committee or subcommittee, references herein to the Committee shall refer to the Board.
|
|
(f) |
Company means [New PubCo], a Delaware corporation, including any successor thereto.
|
|
(g) |
Compensation [means the base salary, wages, annual cash bonuses and commissions paid to an
Eligible Employee by the Company or a Participating Subsidiary as compensation for services to the Company or Participating Subsidiary, before deduction for any salary deferral contributions made by the Eligible Employee to any tax-qualified or nonqualified deferred compensation plan.] |
|
(h) |
Corporate Transaction means a merger, consolidation, acquisition of property or stock,
separation, reorganization or other corporate event described in Section 424 of the Code. |
|
(i) |
Designated Broker means the financial services firm or other agent designated by the Company
to maintain ESPP Share Accounts on behalf of Participants who have purchased Shares under the Plan. |
|
(j) |
Effective Date means the date as of which this Plan is adopted by the Board and approved by
the shareholders of the Company in accordance with Section 19(k). |
|
(k) |
[Eligible Employee means an Employee who is customarily employed for at least twenty
(20) hours per week and more than five (5) months in any calendar year. Notwithstanding the foregoing, the Committee (i) may exclude from participation in the Plan or any Offering any Employees who are highly compensated
employees or a subset of such highly compensated employees (within the meaning of Section 414(q) of the Code) or who otherwise may be excluded from participation pursuant to Treasury Regulation Section 1.423 -2(e) and (ii) shall exclude any Employees located outside of the United States to the extent permitted under Section 423 of the Code.] |
|
(l) |
Employee means any person who renders services to the Company or a Participating Subsidiary
as an employee pursuant to an employment relationship with such employer. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual is on military leave, sick leave or other leave of absence
approved by the Company or a Participating Subsidiary that meets the requirements of Treasury Regulation Section 1.421 -1(h)(2). Where the period of leave exceeds three (3) months, and the
individuals right to reemployment is not provided by statute or contract, the employment relationship shall be deemed to have terminated on the first day immediately following such three-month period. |
|
(m) |
Enrollment Form means an agreement pursuant to which an Eligible Employee may elect to
enroll in the Plan, to authorize a new level of payroll deductions, or to stop payroll deductions and withdraw from an Offering. |
|
(n) |
ESPP Share Account means an account into which Shares purchased with accumulated payroll
deductions at the end of an Offering Period are deposited on behalf of a Participant. |
|
(o) |
Exchange Act means the Securities Exchange Act of 1934, as amended from time to time, and
the rules, regulations and guidance thereunder. Any reference to a provision in the Exchange Act shall include any successor provision thereto. |
|
(p) |
Fair Market Value means, as of any date, the closing price of a Share on the Trading Day
immediately preceding the date of determination (or, if there is no reported sale on such date, on the last preceding date on which a sale occurred, as reported in The Wall Street Journal or another source that the Committee deems reliable), on the
principal stock market or exchange on which Shares are quoted or traded, or if Shares are not so quoted or traded, the fair market value of a Share as determined by the Committee, which such determination shall be conclusive and binding on all
persons. |
|
(q) |
Offering Date means the first Trading Day of each Offering Period as designated by the
Committee. |
|
(r) |
Offering or Offering Period means the period described in Section 5.
|
|
(s) |
Offering Period Limit has the meaning set forth in Section 8. |
|
(t) |
Participant means an Eligible Employee who makes a valid election to participate in the
Plan. |
|
(u) |
Participating Subsidiaries means the Subsidiaries that have been designated by the Committee
as eligible to participate in the Plan, and such other Subsidiaries that may be designated by the Committee from time to time in its sole discretion. |
|
(v) |
Plan means this [New PubCo] 2022 Employee Stock Purchase Plan, as set forth herein, and as
amended from time to time. |
|
(w) |
Purchase Date means the last Trading Day of each Offering Period. |
|
(x) |
Purchase Price means an amount equal to the lesser of (i) eighty-five percent (85%) (or
such greater percentage as designated by the Committee) of the Fair Market Value of a Share on the Offering Date or (ii) eighty-five percent (85%) (or such greater percentage as designated by the Committee) of the Fair Market Value of a Share
on the Purchase Date; provided that the Purchase Price per Share will in no event be less than the par value of the Shares. |
|
(y) |
Securities Act means the Securities Act of 1933, as amended from time to time, and the
rules, regulations and guidance thereunder. Any reference to a provision in the Securities Act includes any successor provision thereto. |
2
|
(z) |
Share means a share of Capital Stock. |
|
(aa) |
Subsidiary means any corporation, domestic or foreign, in an unbroken chain of corporations
beginning with the Company of which at the time of the granting of an option pursuant to Section 7, not less than 50% of the total combined voting power of all classes of stock are held by the Company or a Subsidiary, whether or not such
corporation exists now or is hereafter organized or acquired by the Company or a Subsidiary; provided, however, that a limited liability company or partnership may be treated as a Subsidiary to the extent either (a) such entity is treated as a
disregarded entity under Treasury Regulation Section 301.7701 -3(a) by reason of the Company or any other Subsidiary that is a corporation being the sole owner of such entity or, (b) such entity
elects to be classified as a corporation under Treasury Regulation Section 301.7701 -3(a) and such entity would otherwise qualify as a Subsidiary. |
|
(bb) |
Trading Day means any day on which the national stock exchange upon which the Shares are
listed is open for trading. |
Section 3. Administration.
|
(a) |
Administration of Plan. The Plan shall be administered by the Committee which shall have the authority
to construe and interpret the Plan, prescribe, amend and rescind rules relating to the Plans administration and take any other actions necessary or desirable for the administration of the Plan including, without limitation, adopting sub-plans applicable to particular Participating Subsidiaries or locations, which sub-plans may be designed to be outside the scope of Section 423 of the Code. The
Committee may correct any defect or supply any omission or reconcile any inconsistency or ambiguity in the Plan. The decisions of the Committee shall be final and binding on all persons. All expenses of administering the Plan shall be borne by the
Company. Notwithstanding anything in the Plan to the contrary and without limiting the generality of the foregoing, the Committee shall have the authority to change the minimum amount of Compensation for payroll deductions pursuant to
Section 6(a), the frequency with which a Participant may elect to change their rate of payroll deductions pursuant to Section 6(b), the dates by which a Participant is required to submit an Enrollment Form pursuant to Section 6(b) and
Section 10(a), and the effective date of a Participants withdrawal due to termination of employment or change in status pursuant to Section 11, and the withholding procedures pursuant to Section 19(l). |
|
(b) |
Delegation of Authority. To the extent permitted by applicable law, including under Section 157(c)
of the Delaware General Corporation Law, the Committee may delegate to (i) one or more officers of the Company some or all of its authority under the Plan and (ii) one or more committees of the Board some or all of its authority under the
Plan. |
Section 4. Eligibility. In order to participate in an Offering, an Eligible Employee must deliver a
completed Enrollment Form to the Company at least five (5) business days prior to the Offering Date (unless a different time is set by the Company for all Eligible Employees with respect to such Offering) and must elect their payroll deduction
rate as described in Section 6. Notwithstanding any provision of the Plan to the contrary, no Eligible Employee shall be granted an option under the Plan if (i) immediately after the grant of the option, such Eligible Employee (or any
other person whose stock would be attributed to such Eligible Employee pursuant to Section 424(d) of the Code) would own stock of the Company or hold outstanding options to purchase stock of the Company possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company or any Subsidiary or (ii) such option would permit such Eligible Employees rights to purchase stock under all employee stock purchase plans (described in
Section 423 of the Code) of the Company and its Subsidiaries to accrue at a rate that exceeds $25,000 of the Fair Market Value of such stock (determined at the time the option is granted) for each calendar year in which such option is
outstanding at any time, in accordance with the provisions of Section 423(b)(8) of the Code.
3
Section 5. Offering Periods. The Plan shall be implemented by a series of
Offering Periods, each of which shall be [six (6) months] in duration, with new Offering Periods commencing [on or about February 1 and August 1] of each year. The Committee shall have, prior to the commencement of a particular Offering
Period, the authority to change in offering documents (without amending the Plan) the duration, frequency, start and end dates of Offering Periods (subject to a maximum Offering Period of twenty-seven (27) months), including without limitation
the authority to initiate overlapping Offering Periods.
Section 6. Participation.
|
(a) |
Enrollment; Payroll Deductions. An Eligible Employee may elect to participate in the Plan by properly
completing an Enrollment Form, which may be electronic, and submitting it to the Company, in accordance with the enrollment procedures established by the Committee. Participation in the Plan is entirely voluntary. By submitting an Enrollment Form,
the Eligible Employee authorizes payroll deductions from their paycheck in an amount equal to a percentage (of at least one percent (1%)) of their Compensation on each payday occurring during an Offering Period. Payroll deductions shall commence as
soon as administratively practicable following the Offering Date and end on the latest practicable payroll date on or before the Purchase Date. The Company shall maintain records of all payroll deductions but shall have no obligation to pay interest
on payroll deductions or to hold such amounts in a trust or in any segregated account. Unless expressly permitted by the Committee, a Participant may not make any separate contributions or payments to the Plan. |
|
(b) |
Election Changes. During an Offering Period, a Participant may decrease (but not increase) their rate of
payroll deductions applicable to such Offering Period only once. To make such a change, the Participant must submit a new Enrollment Form authorizing the new rate of payroll deductions at least fifteen (15) days before the Purchase Date. A
Participant may decrease or increase their rate of payroll deductions for future Offering Periods by submitting a new Enrollment Form authorizing the new rate of payroll deductions at least fifteen days before the start of the next Offering Period.
|
|
(c) |
Automatic Re-enrollment. The deduction rate selected in the
Enrollment Form shall remain in effect for subsequent Offering Periods unless the Participant (i) submits a new Enrollment Form authorizing a new level of payroll deductions in accordance with Section 6(b), (ii) withdraws from the Plan in
accordance with Section 10, or (iii) terminates employment or otherwise becomes ineligible to participate in the Plan. |
Section 7. Grant of Option. On each Offering Date, each Participant in the applicable Offering Period shall be granted an option
to purchase, on the Purchase Date, a number of Shares determined by dividing the Participants accumulated payroll deductions by the applicable Purchase Price; provided, that the maximum number of Shares that may be purchased by all
Participants during an Offering Period shall not exceed [_______] Shares (subject to adjustment in accordance with Section 17 and the limitations set forth in Section 4 and Section 13 of the Plan) (the Offering Period
Limit).
Section 8. Exercise of Option/Purchase of Shares. A Participants option to purchase Shares will be
exercised automatically on the Purchase Date of each Offering Period. The Participants accumulated payroll deductions will be used to purchase the maximum number of whole Shares that can be purchased with the amounts in the Participants
notional account, subject to the Offering Period Limit and the limitations set forth in Section 4 and Section 13 of the Plan. No fractional Shares may be purchased, and any contributions unused in a given Offering Period due to being less
than the cost of a Share will be returned to the Participant as soon as administratively practicable after the Purchase Date, subject to earlier withdrawal by the Participant in accordance with Section 10 or termination of employment or change
in employment status in accordance with Section 11. During a Participants lifetime, the Participants option to purchase Shares under the Plan is exercisable only by the Participant.
Section 9. Transfer of Shares. As soon as administratively practicable, but in no event later than thirty (30) days, after
each Purchase Date, the Company will arrange for the delivery to each Participant of the Shares purchased upon exercise of the Participants option. The Committee may permit or require that the Shares be deposited directly into an ESPP Share
Account established in the name of the Participant with a Designated Broker and may require that the Shares be retained with such Designated Broker for a specified period of time. Participants will not
4
have any voting, dividend or other rights of a shareholder with respect to the Shares subject to any option
granted under the Plan until such Shares have been delivered pursuant to this Section 9. No adjustments shall be made for dividends (ordinary or extraordinary, whether in cash securities, or other property) or distribution or other rights for
which the record date occurs prior to the date of such issuance, except as otherwise expressly provided herein or as determined by the Committee.
Section 10. Withdrawal.
|
(a) |
Withdrawal Procedure. A Participant may withdraw from an Offering by submitting to the Company a revised
Enrollment Form indicating their election to withdraw at least fifteen (15) days before the Purchase Date. The accumulated payroll deductions held on behalf of a Participant in their notional account (that have not been used to purchase Shares)
shall be paid to the Participant promptly following receipt of the Participants Enrollment Form indicating their election to withdraw and the Participants option shall be automatically terminated. If a Participant withdraws from an
Offering Period, no payroll deductions will be made during any succeeding Offering Period, unless the Participant re-enrolls in accordance with Section 6(a) of the Plan. |
|
(b) |
Effect on Succeeding Offering Periods. A Participants election to withdraw from an Offering Period
will not have any effect upon the Participants eligibility to participate in succeeding Offering Periods that commence following the completion of the Offering Period from which the Participant withdraws. |
Section 11. Termination of Employment; Change in Employment Status. Notwithstanding Section 10, upon termination of a
Participants employment for any reason prior to the Purchase Date, including death, disability or retirement, or a change in the Participants employment status following which the Participant is no longer an Eligible Employee, the
Participant will be deemed to have withdrawn from an Offering in accordance with Section 10 and the payroll deductions in the Participants notional account (that have not been used to purchase Shares) shall be returned to the Participant,
or in the case of the Participants death, to the person(s) entitled to such amounts by will or the laws of descent and distribution, and the Participants option shall be automatically terminated.
Section 12. Interest. No interest shall accrue on or be payable with respect to the payroll deductions of a Participant in the
Plan.
Section 13. Shares Reserved for Plan.
|
(a) |
Number of Shares. The maximum number of Shares available for issuance under the Plan shall not exceed in
the aggregate 1%1 Shares, subject to adjustment as provided in Section 17. The Shares may be newly issued Shares, treasury Shares or Shares acquired on the open market. The total number of
Shares available for purchase under the Plan shall be increased on the first day of each Company fiscal year following the Effective Date in an amount equal to the lesser of (i) 1% of outstanding Company Capital Stock on the last Business Day of the
immediately preceding fiscal year and (ii) such number of Shares as determined by the Board in its discretion; provided that the maximum number of Shares that may be issued under the Plan in any event shall be [_______] Shares (subject to any
adjustment in accordance with Section 17). If any purchase of Shares pursuant to an option under the Plan is not consummated, the Shares not purchased under such option will again become available for issuance under the Plan.
|
|
(b) |
Over-subscribed Offerings. If the Committee determines that, on a particular Purchase Date, the number
of Shares with respect to which options are to be exercised exceeds either the number of Shares then available under the Plan or the Offering Period Limit, the Company shall make a pro rata allocation of the Shares remaining available for purchase
in as uniform a manner as practicable and as the Committee determines to be equitable. No option granted under the Plan shall permit a Participant to purchase Shares which, if added together with the total number of Shares purchased by all other
Participants in such Offering would exceed either the total number of Shares remaining available under the Plan or the Offering Period Limit. |
1 |
Note to Draft: Insert number equal to 1% of the fully diluted shares of Capital Stock of the Company as
of the Closing. |
5
Section 14. Transferability. No payroll deductions credited to a Participant,
nor any rights with respect to the exercise of an option or any rights to receive Shares hereunder may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will or the laws of descent and distribution, or as provided
in Section 17) by the Participant. Any attempt to assign, transfer, pledge or otherwise dispose of such rights or amounts shall be without effect.
Section 15. Application of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company
for any corporate purpose to the extent permitted by applicable law, and the Company shall not be required to segregate such payroll deductions or contributions.
Section 16. Statements. Participants will be provided with statements at least annually which shall set forth the contributions
made by the Participant to the Plan, the Purchase Price of any Shares purchased with accumulated funds, the number of Shares purchased, and any payroll deduction amounts remaining in the Participants notional account.
Section 17. Designation of Beneficiary. If permitted by the Committee, a Participant may file, on forms supplied by the Committee,
a written designation of beneficiary who, in the event of the Participants death, is to receive any Shares from the Participants ESPP Share Account or any payroll deduction amounts remaining in the Participants notional account.
Section 18. Adjustments Upon Changes in Capitalization; Dissolution or Liquidation; Corporate Transactions.
|
(a) |
Adjustments. In the event that any dividend or other distribution (whether in the form of cash, Shares,
or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange
of Shares or other securities of the Company, or other change in the Companys structure affecting the Shares occurs, then in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the
Plan, the Committee will, in such manner as it deems equitable, adjust the number of Shares and class of Shares that may be delivered under the Plan, the Purchase Price per Share and the number of Shares covered by each outstanding option under the
Plan, and the numerical limits of Section 7 and Section 13. |
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(b) |
Dissolution or Liquidation. Unless otherwise determined by the Committee, in the event of a proposed
dissolution or liquidation of the Company, any Offering Period then in progress will be shortened by setting a new Purchase Date and the Offering Period will end immediately prior to the proposed dissolution or liquidation. The new Purchase Date
will be before the date of the Companys proposed dissolution or liquidation. Before the new Purchase Date, the Committee will provide each Participant with written notice, which may be electronic, of the new Purchase Date and that the
Participants option will be exercised automatically on such date, unless before such time, the Participant has withdrawn from the Offering in accordance with Section 10 (or deemed to have withdrawn in accordance with Section 11).
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(c) |
Corporate Transaction. In the event of a Corporate Transaction, each outstanding option will be assumed
or an equivalent option substituted by the successor corporation or a parent or Subsidiary of such successor corporation. If the successor corporation refuses to assume or substitute the option, the Offering Period with respect to which the option
relates will be shortened by setting a new Purchase Date on which the Offering Period will end. The new Purchase Date will occur before the date of the Corporate Transaction. Prior to the new Purchase Date, the Committee will provide each
Participant with written notice, which |
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may be electronic, of the new Purchase Date and that the Participants option will be exercised automatically on such date, unless before such date, the Participant has withdrawn (or, pursuant to Section 11,
been deemed to have withdrawn) from the Offering in accordance with Section 10. Notwithstanding the foregoing, in the event of a Corporate Transaction, the Committee may also elect to terminate all outstanding Offering Periods in accordance
with Section 19(i). |
Section 19. General Provisions.
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(a) |
Equal Rights and Privileges. Notwithstanding any provision of the Plan to the contrary and in accordance
with Section 423 of the Code, all Eligible Employees who are granted options under the Plan shall have the same rights and privileges. |
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(b) |
No Right to Continued Service. Neither the Plan nor any compensation paid hereunder will confer on any
Participant the right to continue as an Employee or in any other capacity. |
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(c) |
Rights as Shareholder. A Participant will become a shareholder with respect to the Shares that are
purchased pursuant to options granted under the Plan when the Shares are transferred to the Participant or, if applicable, to the Participants ESPP Share Account. A Participant will have no rights as a shareholder with respect to Shares for
which an election to participate in an Offering Period has been made until such Participant becomes a shareholder as provided herein. |
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(d) |
Successors and Assigns. The Plan shall be binding on the Company and its successors and assigns.
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(e) |
Entire Plan. This Plan, together with any Enrollment Forms or offering documents, constitutes the entire
plan with respect to the subject matter hereof and supersedes all prior plans with respect to the subject matter hereof. |
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(f) |
Compliance with Law. The obligations of the Company with respect to payments under the Plan are subject
to compliance with all applicable laws and regulations. Shares shall not be issued with respect to an option granted under the Plan unless the exercise of such option and the issuance and delivery of the Shares pursuant thereto shall comply with all
applicable provisions of law, including, without limitation, the Securities Act, the Exchange Act, and the requirements of any stock exchange upon which the Shares may then be listed. |
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(g) |
Disqualifying Dispositions. Each Participant shall give the Company prompt written notice of any
disposition or other transfer of Shares acquired pursuant to the exercise of an option acquired under the Plan, if such disposition or transfer is made within two years after the Offering Date or within one year after the Purchase Date.
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(h) |
Term of Plan. The Plan shall become effective on the Effective Date and, unless terminated earlier
pursuant to Section 19(i), shall have a term of ten years. |
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(i) |
Amendment or Termination. The Committee may, in its sole discretion, amend, suspend or terminate the
Plan at any time and for any reason; provided, however, that approval of the Companys stockholders shall be required to amend the Plan to: (a) increase the aggregate number, or change the type, of Shares that may be sold pursuant to
rights under the Plan (other than an adjustment as provided by Section 18); (b) change the Plan in any manner that would be considered the adoption of a new plan within the meaning of Treasury Regulation Section 1.423 -2(c)(4); or (c) subject to the first sentence of Section 3(a), change the Plan in any manner that would cause the Plan to no longer be an employee stock purchase plan within the meaning of
Section 423(b) of the Code. If the Plan is terminated, the Committee may elect to terminate all outstanding Offering Periods either immediately or once Shares have been purchased on the next Purchase Date or permit |
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Offering Periods to expire in accordance with their terms (and subject to any adjustment in accordance with Section 18). If any Offering Period is terminated before its scheduled expiration, all amounts that have
not been used to purchase Shares will be returned to Participants (without interest, except as otherwise required by law) as soon as administratively practicable. |
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(j) |
Applicable Law. The laws of the State of Delaware shall govern all questions concerning the
construction, validity and interpretation of the Plan, without regard to such states conflict of law rules. |
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(k) |
Shareholder Approval. The Plan shall be subject to approval by the shareholders of the Company within
twelve (12) months before or after the date the Plan is adopted by the Board. |
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(l) |
Section 423. The Plan is intended to qualify as an employee stock purchase
plan under Section 423 of the Code, and subject to the first sentence of Section 3(a), any provision of the Plan that is inconsistent with Section 423 of the Code shall be reformed to comply with Section 423 of the Code.
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(m) |
Withholding. To the extent required by applicable Federal, state or local law, a Participant must make
arrangements satisfactory to the Company for the payment of any withholding or similar tax obligations that arise in connection with the Plan. At any time, the Company or any Subsidiary may, but will not be obligated to, withhold from a
Participants compensation the amount necessary for the Company or any Subsidiary to meet applicable withholding obligations, including any withholding required to make available to the Company or any Subsidiary any tax deductions or benefits
attributable to the sale or early disposition of Shares by such Participant. In addition, the Company or any Subsidiary may, but will not be obligated to, withhold from the proceeds of the sale of Shares or any other method of withholding that the
Company or any Subsidiary deems appropriate to the extent permitted by, where applicable, Treasury Regulation Section 1.423 -2(f). The Company will not be required to issue any Shares under the Plan until
such obligations are satisfied. |
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(n) |
Severability. If any provision of the Plan shall for any reason be held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect any other provision hereof, and the Plan shall be construed as if such invalid or unenforceable provision were omitted. |
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(o) |
Headings. The headings of sections herein are included solely for convenience and shall not affect the
meaning of any of the provisions of the Plan. |
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(p) |
Participating Subsidiaries. This Plan shall constitute the Employee Stock Purchase Plan of the Company
and each Participating Subsidiary. A Participating Subsidiary may withdraw from the Plan as of any Offering Date by giving written notice to the Board, which notice must be received by at least thirty (30) days prior to such Offering Date.
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* * * *
8
EXHIBIT N
ACCREDITED INVESTOR QUESTIONNAIRE
Exhibit N
ACCREDITED INVESTOR QUESTIONNAIRE1
Part I
Rule 501(a) under the Securities Act, in relevant
part, states that an accredited investor shall mean any person who comes within any of the below listed categories, or who the issuer reasonably believes comes within any of the below listed categories, at the time of the sale of the
securities to that person.
(a) The undersigned accredited Investor (the Accredited Investor) has indicated, by marking and initialing
the appropriate box below, the provision(s) below which apply to the Accredited Investor and under which the Accredited Investor accordingly qualifies as an accredited investor.
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Entities: |
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☐ Any bank as defined in section 3(a)(2) of the Securities Act, or any savings and loan association or other institution as defined in section 3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
capacity; |
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☐ Any broker or dealer registered pursuant to section 15 of the Securities Exchange Act of 1934, as amended; |
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☐ Any investment adviser registered pursuant to section 203 of the Investment Advisers Act of 1940 or registered pursuant to the laws of a state; |
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☐ Any investment adviser relying on the exemption from registering with the Securities and Exchange Commission under section 203(l) or (m) of the Investment Advisers Act of 1940; |
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☐ Any insurance company as defined in section 2(a)(13) of the Securities Act; |
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☐ Any investment company registered under the Investment Company Act of 1940, as amended (the Investment Company Act), or a business development company as defined in section 2(a)(48) of the Investment
Company Act; |
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☐ Any Small Business Investment Company licensed by the U.S. Small Business Administration under section 301(c) or (d) of the Small Business Investment Act of 1958, as amended; |
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☐ Any Rural Business Investment Company as defined in section 384A of the Consolidated Farm and Rural Development Act; |
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☐ Any plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees, if such plan has total assets in excess
of $5,000,000; |
1 |
For purposes hereof, the Company means Wildfire New PubCo, Inc., a Delaware corporation.
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☐ Any employee benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, as amended (ERISA), (i) if the investment decision is made by a plan fiduciary, as defined in section
3(21) of ERISA, which is either a bank, a savings and loan association, an insurance company, or a registered investment adviser, or (ii) if the employee benefit plan has total assets in excess of $5,000,000 or, (iii) if such plan is a
self-directed plan, with investment decisions made solely by persons that are accredited investors; |
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☐ Any private business development company as defined in section 202(a)(22) of the Investment Advisers Act of 1940, as amended; |
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☐ Any organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, corporation, Massachusetts or similar business trust, partnership, or limited liability company, not formed for the specific
purpose of acquired the securities offered, with total assets in excess of $5,000,000; |
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☐ Any trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered, whose purchase is directed by a sophisticated person as described in
Section 230.506(b)(2)(ii) of Regulation D; |
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☐ Any entity in which all of the equity owners are accredited investors; |
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☐ Any entity of a type not listed above, that is not formed for the specific purpose of acquiring the securities offered and owns investments in excess of $5,000,000; or |
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☐ Any family office, as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, that (i) has assets under management in excess of $5,000,000; (ii) is
not formed for the specific purpose of acquiring the securities offered and (iii) has a person directing the prospective investment who has such knowledge and experience in financial and business matters so that the family office is capable of
evaluating the merits and risks of the prospective investment; |
Natural Persons:
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☐ Any director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director, executive officer, or general partner of a general partner of that issuer; |
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☐ Any natural person whose individual net worth, or joint net worth with that persons spouse, exceeds $1,000,0002; |
2 |
For purposes of this item, net worth means the excess of total assets at fair market value
(excluding the value of the primary residence of such natural person) over total liabilities (excluding the amount of indebtedness secured by the primary residence of such natural person up to such primary residences estimated fair market
value, except that if the amount of such indebtedness outstanding at the time of investment in the Company exceeds the amount outstanding 60 days before such time (the additional indebtedness), other than as a result of the
acquisition of the primary residence, the amount of such additional indebtedness shall be included as a liability). |
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☐ Any natural person who had an individual income3 in excess of $200,000 in each of the two most recent years, or joint
income4 with that persons spouse or spousal equivalent in excess of $300,000 in each of those years, and has a reasonable expectation of reaching the same income level in the current
year; |
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☐Any natural person who holds, in good standing, one of the following professional licenses: the General Securities Representative license (Series 7), the Private Securities Offerings Representative license (Series 82), or the
Investment Adviser Representative license (Series 65); or |
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☐Any family client, as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, of a family office meeting the requirements of immediately preceding
paragraph and whose prospective investment in the Company is directed by that family office pursuant to clause (iii) of the immediately preceding paragraph. |
(b) The Accredited Investor:
an affiliate (as defined in Rule 144 under the Securities Act) of the Company or acting on behalf of an affiliate of the Company.
3 |
For purposes of this item, individual income means adjusted gross income as reported for
U.S. federal income tax purposes, less any income attributable to a spouse or to property owned by a spouse, increased by the following amounts (but not including any amounts attributable to a spouse or to property owned by a spouse):
(i) the amount of any interest income received which is tax-exempt under §103 of the U.S. Internal Revenue Code of 1986, as amended (the Code), (ii) the amount of losses claimed as a limited partner in a limited partnership
(as reported on Schedule E of Form 1040), (iii) any deduction claimed for depletion under Code §611 et seq., and (iv) any amount by which income from long-term capital gains has been reduced in arriving at adjusted gross income pursuant
to the provisions of Code §1202 prior to its repeal by the Tax Reform Act of 1986. |
4 |
For purposes of this item, joint income means adjusted gross income as reported for U.S.
federal income tax purposes, including any income attributable to a spouse or to property owned by a spouse, increased by the following amounts (including any amounts attributable to a spouse or to property owned by a spouse): (i) the
amount of any interest income received which is tax-exempt under §103 of the Code, (ii) the amount of losses claimed as a limited partner in a limited partnership (as reported on Schedule E of Form 1040), (iii) any deduction claimed for
depletion under Code §611 et seq., and (iv) any amount by which income from long-term capital gains has been reduced in arriving at adjusted gross income pursuant to the provisions of Code §1202 prior to its repeal by the Tax Reform Act of
1986. |
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Exhibit N
IN WITNESS WHEREOF, the Accredited Investor has executed this Accredited Investor Questionnaire on the date set forth below.
Dated ____________ ___, 2022
For Accredited Investors That
Are Natural Persons:
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Spouses Signature: |
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(only required if issuance is being made to a married couple as joint tenants) |
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(signature) |
For Accredited Investors That Are Alter-Egos of Natural Persons (e.g., individual retirement accounts, self-directed
retirement plans and certain revocable grantor trusts):
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Name: |
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(print or type) |
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By: |
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(signature of authorized representative) |
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Name: |
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(print or type name of authorized representative) |
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Title: |
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(print or type title of authorized representative) |
For Accredited Investors That Are Entities:
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Name: |
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(print or type) |
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By: |
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(signature of authorized signatory) |
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Name: |
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(print or type name of authorized signatory) |
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Title: |
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(print or type title of authorized signatory) |
Exhibit 10.1
August 3, 2022
Jack Creek Investment Corp.
386 Park Avenue South, 20th Floor
New York, NY 10016
RE: Sponsor Agreement
Reference is made to that certain Agreement and Plan of Merger (the Merger Agreement), dated as of the date hereof, by and
among Jack Creek Investment Corp., a Cayman Islands exempted company (Purchaser), Wildfire New PubCo, Inc., a Delaware corporation and direct, wholly owned subsidiary of Purchaser (New PubCo), Wildfire Merger
Sub I, Inc., a Delaware corporation and direct, wholly owned subsidiary of New PubCo, Wildfire Merger Sub II, Inc., a Delaware corporation and direct, wholly owned subsidiary of New PubCo, Wildfire Merger Sub III, LLC, a Delaware limited liability
company and direct, wholly owned subsidiary of New PubCo, Wildfire GP Sub IV, LLC, a Delaware limited liability company and direct, wholly owned subsidiary of New PubCo, BTOF (Grannus Feeder) NQ L.P., a Delaware limited partnership, and
Bridger Aerospace Group Holdings, LLC, Delaware limited liability company (the Company). This letter agreement (this Letter Agreement) is being entered into and delivered by Purchaser, New PubCo, JCIC Sponsor
LLC, a Cayman Islands exempted limited partnership (the Sponsor) and each of the undersigned directors and officers of Purchaser (together with the Sponsor, the Sponsor Persons), in connection with the
Transactions. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
In consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
New PubCo, Purchaser and the Sponsor Persons hereby agree as follows:
1. |
The Sponsor represents and warrants that it holds 8,550,000 shares of the issued and outstanding Class B
ordinary shares, par value $0.0001 per share, of Purchaser (the Purchaser Class B Common Stock), as of the date of this Letter Agreement. The Sponsor Persons (excluding the Sponsor) represent and warrant that
they collectively hold 75,000 shares of the issued and outstanding Purchaser Class B Common Stock, as of the date of this Letter Agreement. The Sponsor Persons represent and warrant that, as of the date hereof, there are 8,625,000 shares of
Purchaser Class B Common Stock issued and outstanding. |
2. |
Each Sponsor Person agrees that if Purchaser seeks shareholder approval of the Merger Agreement and the
Transactions (including, if applicable, any Extension), then, in connection therewith, such Sponsor Person shall (i) appear at the Special Meeting (or any other meeting of the holders of Purchaser Ordinary Shares called in connection with such
matters) or otherwise cause any Purchaser Ordinary Shares owned by it, him or her to be counted as present thereat for the purpose of establishing a quorum, (ii) vote or cause to be voted at the Special Meeting (or any other meeting of the
holders of Purchaser Ordinary Shares called in connection with such matters) all of the Purchaser Ordinary Shares held by it, him or her in favor of the Merger Agreement and the Transactions (including each of the Purchaser Shareholder Matters and,
if applicable, any Extension and any other proposals recommended by Purchasers Board of Directors in connection with such matters) and (iii) not redeem any such Purchaser Ordinary Shares held by it, him or her. |
3. |
Subject to the satisfaction or waiver of each of the conditions to Closing set forth in Sections 12.01, 12.02
and 12.03 of the Merger Agreement, effective immediately prior to the Closing, each Sponsor Person hereby waives, in accordance with Section 17.4 of the Memorandum and Articles, any and all rights that any holder of Purchaser Class B
Common Stock has or will have under Section 17.3 of the Memorandum and Articles to receive, with respect to each share of Purchaser Class B Common Stock held by such Sponsor Person, more than one (1) share of New PubCo Common Stock
upon automatic conversion of such shares of Purchaser Class B Common Stock in accordance with the Memorandum and Articles in connection with the consummation of the Transactions. Without limitation of the foregoing, upon the consummation of the
Transactions, each Sponsor Person hereby acknowledges and agrees that pursuant to the Merger Agreement, each share of Purchaser Class B Common Stock shall automatically convert into one (1) share of New PubCo Common Stock.
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4. |
Upon and subject to the Closing, a number of shares of Purchaser Class B Common Stock owned by the Sponsor
(the Sponsor Shares) equal to the sum of (a) 8,550,000 minus the number of Available Sponsor Shares (as defined below), and (b) if the amount remaining in the Trust Account is less than $20,000,000 after deducting all amounts
payable in respect of Purchaser Class A Ordinary Shares submitted for redemption in connection with the consummation of the Transactions, (i) the excess of Purchaser Transaction Expenses (as defined below) over $6,500,000, if any, divided
by (ii) $10.00, shall be forfeited by the Sponsor effective as of immediately prior to the Closing. |
5. |
Upon and subject to the Closing, an aggregate amount of 20% of the Available Sponsor Shares (the
Sponsor Earnout Shares) shall become subject to potential forfeiture if the applicable Triggering Event does not occur during the Earnout Period, with such Sponsor Earnout Shares vesting (and therefore no longer subject to
forfeiture), if at all, in accordance with paragraph 8 of this Letter Agreement. Any Sponsor Earnout Shares that remain unvested as of the end of the Earnout Period shall be forfeited by the Sponsor effective as of the end of the Earnout Period.
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6. |
The holders of the Sponsor Earnout Shares shall not sell, transfer, assign, pledge, encumber, hypothecate or
similarly dispose of any Sponsor Earnout Shares until the date on which the applicable Triggering Event has occurred; provided, that the Sponsor may distribute the Sponsor Earnout Shares to its members in accordance with its organizational
documents and the Registration Rights Agreement. |
7. |
Any certificates or book entries representing the Sponsor Earnout Shares shall bear a legend referencing that
they are subject to forfeiture pursuant to the provisions of this Letter Agreement, and any transfer agent for the shares of New PubCo Common Stock will be given appropriate stop transfer orders that will be applicable until the Sponsor Earnout
Shares are vested; provided, however, that upon the vesting of any Sponsor Earnout Shares in accordance with the terms herein, New PubCo shall immediately cause the removal of such legend and direct such transfer agent that such stop
transfer orders are no longer applicable. Holders of the Sponsor Earnout Shares shall be entitled to vote such Sponsor Earnout Shares and receive dividends and other distributions in respect thereof prior to the vesting of such Sponsor Earnout
Shares in accordance with the terms herein; provided, that any such dividends and other distributions in respect of the Sponsor Earnout Shares that are subject to vesting pursuant to the terms herein shall be set aside by New PubCo and shall
only be paid to the holder of such Sponsor Earnout Shares upon the vesting thereof. |
8. |
A portion of the Sponsor Earnout Shares shall immediately become fully vested and no longer subject to
forfeiture upon the occurrence of the Triggering Event applicable to such portion of the Sponsor Earnout Shares during the Earnout Period; provided, however, that each of the Triggering Events described in clauses (i) and (ii) of
the definition of Triggering Event shall occur only once, if at all. |
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9. |
If New PubCo at any time combines or subdivides (by any stock split, stock dividend, recapitalization,
reorganization, merger, amendment of the New PubCo Charter or the New PubCo Bylaws (the Governing Documents), scheme, arrangement or otherwise or extraordinary dividend resulting from an asset sale or leveraged recapitalization)
the New PubCo Common Stock, the share prices set forth in the definition of Triggering Event below shall be equitably adjusted by New PubCo in good faith to take into account such stock split, stock dividend, recapitalization,
reorganization, merger, amendment of the applicable Governing Documents, scheme, arrangement or extraordinary dividend or other applicable transaction. |
10. |
Immediately prior to the consummation of the Transactions, if the balance of the trust account formed pursuant
to that certain Investment Management Trust Agreement, dated as of January 26, 2021, by and between Purchaser and Continental Stock Transfer & Trust Company (the Trust Account) is less than $50,000,000.00, after
deducting all amounts payable in respect of Purchaser Class A Ordinary Shares submitted for redemption in connection with the consummation of the Transactions, then immediately prior to Closing, each of Purchaser and Sponsor agree to convert
any outstanding loan balance under that certain Promissory Note (the Promissory Note), dated as of February 16, 2022, by and between Purchaser and Sponsor, into a number of Purchaser Class A Ordinary Shares equal to the
amount of outstanding loan balance under the Promissory Note divided by $10.00, rounded up to the nearest whole share. |
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a. |
Available Sponsor Shares shall mean (i) if the Trust Account is less than or equal to
$50,000,000, after deducting all amounts payable in respect of Purchaser Class A Ordinary Shares submitted for redemption in connection with the consummation of the Transactions, 4,275,000 Sponsor Shares and (ii) if the Trust Account is
greater than $50,000,000, after deducting all amounts payable in respect of Purchaser Class A Ordinary Shares submitted for redemption in connection with the consummation of the Transactions, a number of Sponsor Shares equal to (A) 8,550,000,
multiplied by (B)(1) the amount in the Trust Account after deducting all amounts payable in respect of Purchaser Class A Ordinary Shares submitted for redemption in connection with the consummation of the Transactions, divided by (2)
$100,000,000; provided, that, in no event shall the Available Sponsor Shares exceed 8,550,000. |
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b. |
Change of Control shall mean any transaction or series of transactions (a) following
which a Person or group (as defined in the Exchange Act) of Persons (other than New PubCo or any of its Subsidiaries), has direct or indirect beneficial ownership of securities (or rights convertible or exchangeable into securities)
representing fifty percent (50%) or more of the voting power of or economic rights or interests in New PubCo or any of its Subsidiaries, (b) constituting a merger, consolidation, reorganization or other business combination, however effected,
following which any Person or group (as defined in the Exchange Act) of Persons (other than New PubCo or any of its Subsidiaries) has direct or indirect beneficial ownership of securities (or rights convertible or exchangeable into
securities) representing fifty percent (50%) or more of the voting power of or economic rights or interests in New PubCo or any of its Subsidiaries or the surviving Person after such combination or (c) the result of which is a sale of all or
substantially all of the assets of New PubCo or any of its Subsidiaries to any Person. |
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c. |
Common Share Price shall mean the share price (beginning on the first trading day after the
Closing Date) equal to the volume-weighted average closing sale price of one share of New PubCo Common Stock as reported on Nasdaq (or the exchange on which the shares of New PubCo Common Stock are then listed) for a period of at least twenty
(20) days out of thirty (30) consecutive trading days ending on the trading day immediately prior to the date of determination (as adjusted as appropriate to reflect any stock splits, reverse stock splits, stock dividends (including any
dividend or distribution of securities convertible into New PubCo Common Stock), extraordinary cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change or transaction with respect to New
PubCo Common Stock). |
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d. |
Earnout Period shall mean the time period beginning on the date immediately following the
Closing Date and ending on and including the date of the five (5) year anniversary of the Closing Date. |
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e. |
Purchaser Transaction Expenses shall mean the aggregate of fees and expenses for legal
counsel, accounting advisors, external auditors and financial advisors incurred by Purchaser in connection with the Transactions prior to Closing, but excluding, for the avoidance of doubt, any deferred underwriting fees. |
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f. |
Triggering Event shall mean, (i) with respect to 50% of the Sponsor Earnout Shares, the
first date during the Earnout Period on which the Common Share Price is greater than $11.50 (the First Common Share Price Threshold) and (ii) with respect to the remaining 50% of Sponsor Earnout Shares, the first date during the
Earnout Period on which the Common Share Price is greater than $13.00 (the Second Common Share Price Threshold); provided, that in the event of a Change of Control during
the Earnout Period pursuant to which New PubCo or any of its stockholders receive, or have the right to receive, cash, securities or other property attributing a value of at least (x) the First Common Share Price Threshold with respect to each
share of New PubCo Common Stock (as determined in good faith by the board of directors of New PubCo and, for the avoidance of doubt, such determination shall be made assuming that 50% of the Sponsor Earnout Shares have already vested), then a
Triggering Event shall be deemed to have occurred immediately prior to such Change of Control with respect to 50% of the Sponsor Earnout Shares and (y) the Second Common Share Price Threshold with respect to each share of New PubCo Common Stock
(as determined in good faith by the board of directors of New PubCo and, for the avoidance of doubt, such determination shall be made assuming that all of the Sponsor Earnout Shares would have already vested), then a Triggering Event shall be deemed
to have occurred immediately prior to such Change of Control with respect to the remaining 50% of the Sponsor Earnout Shares. |
12. |
The Company is an express third party beneficiary of this Letter Agreement entitled to the rights and benefits
hereunder and to enforce the provisions hereof as if it was a party hereto. This Letter Agreement may not be amended without the written consent of the Company. |
13. |
This Letter Agreement, together with the Merger Agreement to the extent referenced herein and the other
agreements entered into by the Sponsor Persons in connection with the initial public offering of Purchaser (including, without limitation, that certain letter agreement, dated as of January 26, 2021, among Purchaser and each of the Sponsor
Persons), constitute the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral,
relating to the subject matter hereof. |
4
14. |
No party hereto may assign either this Letter Agreement or any of its rights, interests, or obligations
hereunder without the prior written consent of the other parties hereto and the Company, and any purported assignment in violation of the foregoing shall be null and void ab initio. This Letter Agreement shall be binding on the parties hereto and
their respective successors and assigns. |
15. |
This Letter Agreement shall be construed and interpreted in a manner consistent with the provisions of the
Merger Agreement. In the event of any conflict between the terms of this Letter Agreement and the Merger Agreement, the terms of the Merger Agreement shall govern. The provisions set forth in Sections 14.01 (Waiver), 14.06 (Governing Law), 14.07
(Captions; Counterparts); 14.10 (Amendments); 14.11 (Severability), 14.12 (Jurisdiction; Waiver of Trial by Jury) and 14.13 (Enforcement) of the Merger Agreement, as in effect as of the date hereof, are hereby incorporated by reference into, and
shall be deemed to apply to, this Letter Agreement mutatis mutandis. |
16. |
Any notice, consent or request to be given in connection with any of the terms or provisions of this Letter
Agreement shall be in writing and shall be sent in the same manner as provided in the Merger Agreement, to: |
c/o Jack
Creek Investment Corp
386 Park Avenue South, FL 20
New York, NY 10016
Attention:
Tariq Khan; Lauren Ores
E-mail: tkhan@kshcapital.com; lores@kshcapital.com
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY
10153
Attention: Jackie Cohen
Email: jackie.cohen@weil.com
17. |
This Letter Agreement shall terminate, and have no further force and effect, if the Merger Agreement is
terminated in accordance with its terms prior to the First Effective Time. |
[The remainder of this page left
intentionally blank.]
5
Please indicate your agreement to the terms of this Letter Agreement by signing where
indicated below.
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Very truly yours, |
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JCIC SPONSOR LLC |
By its Manager, KSH CAPITAL LP |
Acting by its General Partner |
KSH CAPITAL GP LLC |
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By: |
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/s/ Robert F. Savage |
Name: Robert F. Savage |
Title: President |
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Acknowledged and agreed as of the date of this Letter Agreement: |
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JACK CREEK INVESTMENT CORP. |
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By: |
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/s/ Robert F.
Savage |
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Name: Robert F. Savage |
Title: Chief Executive Officer |
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WILDFIRE NEW PUBCO, INC. |
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By: |
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/s/ Robert F.
Savage |
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Name: |
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Robert F. Savage |
Title: |
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President |
[Signature Page to
Letter Agreement]
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SPONSOR PERSONS: |
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By: |
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/s/ Jeffrey E. Kelter |
Name: |
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Jeffrey E. Kelter |
Title: |
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Executive Chairman and |
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Chairman of the Board of Directors |
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By: |
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/s/ Robert F. Savage |
Name: |
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Robert F. Savage |
Title: |
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Chief Executive Officer |
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By: |
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/s/ Thomas Jermoluk |
Name: |
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Thomas Jermoluk |
Title: |
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President, Director |
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By: |
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/s/ James H. Clark |
Name: |
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James H. Clark |
Title: |
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Chief Technology Officer |
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By: |
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/s/ Lauren D. Ores |
Name: |
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Lauren D. Ores |
Title: |
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Chief Financial Officer |
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By: |
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/s/ Heather Hartnett |
Name: |
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Heather Hartnett |
Title: |
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Director |
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By: |
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/s/ Samir Kaul |
Name: |
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Samir Kaul |
Title: |
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Director |
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By: |
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/s/ Richard Noll |
Name: |
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Richard Noll |
Title: |
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Director |
[Signature Page to Letter Agreement]
Exhibit 99.1
Bridger Aerospace, a Leading Provider of Aerial Firefighting Services, to Become a Public Company
Through Business Combination with Jack Creek Investment Corp.
Combination will build upon Bridgers strong financial performance, accelerate its expansion and strategic investment strategy, while
helping to meet a critical public safety and environmental need
Only pure-play, public U.S. aerial firefighting services company to
offer industry-leading tactical expertise and proprietary technological capabilities to combat year-round environmental and economic crises
Blackstone Tactical Opportunities, an early Bridger investor, to retain equity and two seats on the Companys Board of Directors
Transaction values Bridger at $869 million on a pro forma enterprise value and is expected to infuse up to approximately
$345 million of cash to the Companys balance sheet, assuming no redemptions by Jack Creeks public shareholders and before payment of transaction expenses; no minimum cash requirement or PIPE needed to close
Bozeman, MT and New York, August 4, 2022 (GLOBE NEWSWIRE) Bridger Aerospace Group Holdings, LLC (Bridger or the Company),
a leading independent provider of aerial firefighting services, and Jack Creek Investment Corp. (Jack Creek) (NASDAQ: JCIC), a special purpose acquisition company, today announced a definitive merger agreement that will result in Bridger
becoming a publicly traded company. Upon completion of the proposed combination, the combined company will be named Bridger Aerospace Group Holdings, Inc. and is expected to list on the NASDAQ Capital Market under the ticker symbol BAER.
Founded in 2014 and led by current Chief Executive Officer and former Navy SEAL Tim Sheehy, Bridger is a mission-driven company focused on addressing the
year-round threat of economic and environmental damage caused by wildfires. Through its effective, modern and purposefully designed fleet of aircraft, Bridger provides its federal agency and state government client base with a comprehensive range of
aerial firefighting solutions. Bridger operates a large and sophisticated fleet of firefighting aircraft, which includes Super Scoopers (CL-415EAF), air attack and logistical support aircraft (Next
Generation Daher Kodiaks, Pilatus PC-12s, DeHavilland Twin Otter and legacy Twin Commanders), and UAVs (Unmanned Aerial Vehicles). Bridger also offers FireTRAC, an innovative, proprietary data gathering,
aerial surveillance and reporting platform that complements its fleet of firefighting assets.
Bridger has the ability to operate in all 50 states and a
track record of strong financial performance supported by a recurring revenue model and multiple federal and state contracts. As climate conditions continue to evolve and create a longer, more intense wildfire season, a consistent and cost-effective
solution is required. Bridgers experience and expertise positions it to be the aerial firefighting solution of choice for federal, state and local governments.
Mr. Sheehy, who will continue to lead Bridger as Chief Executive Officer, commented, Our mission at Bridger is simple: to save lives, preserve our
environment, and protect the people and communities that are impacted by the growing wildfire crisis across the globe. Our team is proud to be on the frontlines, bringing our tactical military experience, operational capabilities, focus on safety
and the technology solutions required to attack this problem head-on. In Jack Creek, we have found the right partner to meet this challenge, as they will provide us with the additional resources and management
support to grow our fleet and expand our geographic presence.
Through its partnership with Jack Creek, Bridger expects to be uniquely positioned to expand throughout
North America and globally to meet the rising demand for these critical services. Jack Creeks executive team has an extensive track record of building and operating high-performing, private and publicly traded businesses across various
sectors. They will bring this expertise and history of entrepreneurship, innovation and capital allocation to create significant value for shareholders with this transaction. Jack Creeks Executive Chairman, Jeffrey Kelter, will become Chairman
of Bridgers Board, which will include another member of Jack Creeks deeply experienced leadership team. Funds managed by Blackstone Tactical Opportunities, as an early investor in Bridger, will remain an equity holder in the Company and
retain two Board seats.
Mr. Kelter added, Our priority for this transaction was to identify a company with exceptional leadership and
operational expertise to take public and with which we could develop a true partnership. As a private company, Bridger has attracted the support of leading institutional investors and counts as equity holders some of the leading financial
institutions and asset managers in the world. With its strong recurring revenue model, experienced management team and industry-leading aircraft fleet, the Company is well-positioned to grow and create significant and sustained value for investors
and all stakeholders as it works to meet critical environmental and community needs.
Transaction Overview
The business combination values Bridger at an implied $869 million pro forma enterprise value. The transaction, which does not have a minimum cash
requirement or require a PIPE offering, is expected to deliver up to approximately $345 million of cash to Bridgers balance sheet, assuming no redemptions by Jack Creeks public shareholders and before payment of transaction
expenses, leaving the Company better positioned to further expand its fleet and explore proprietary strategic investments.
The Boards of Directors of
both Bridger and Jack Creek have unanimously approved the proposed business combination, which is expected to be completed in the fourth quarter of 2022, subject to satisfaction of customary closing conditions, including the approval of Jack
Creeks shareholders.
Additional information about the proposed transaction, including a copy of the merger agreement and investor presentation,
will be provided in a Current Report on Form 8-K to be filed by Jack Creek with the Securities and Exchange Commission and available at www.sec.gov.
Advisors
Sidley Austin LLP is serving as legal advisor
to Bridger. Weil, Gotshal & Manges LLP is serving as legal advisor to Jack Creek.
About Bridger Aerospace
Based in Bozeman, Montana, Bridger Aerospace Group Holdings, LLC is one of the nations largest privately held aerial firefighting companies. Bridger is
committed to utilizing its team, aircraft and technology to save lives, property and habitats threatened by wildfires. Bridger provides aerial firefighting and wildfire management services to federal and state government agencies, including the
United States Forest Service, across the nation. More information about the company is available at www.bridgeraerospace.com.
About Jack Creek Investment Corp.
Jack Creek Investment Corp. is a special purpose acquisition company formed for the purpose of effecting a merger, share exchange, asset acquisition, share
purchase, reorganization or similar business combination with one or more businesses.
Media Contact
Jeremy Jacobs and Will Braun
Abernathy MacGregor
212-371-5999
jrj@abmac.com / whb@abmac.com
Investor Contact
Lauren Ores
KSH Capital
212-710-5073
lores@kshcapital.com
No Offer or Solicitation
This press release does not constitute an offer to sell, or a solicitation of an offer to buy, or a recommendation to purchase, any securities in any
jurisdiction, or the solicitation of any vote, consent or approval in any jurisdiction in connection with the potential business combination between Bridger Aerospace Group Holdings, LLC (Bridger) and Jack Creek Investment Corp.
(Jack Creek) and related transactions (the Potential Business Combination), nor shall there be any sale, issuance or transfer of any securities in any jurisdiction where, or to any person to whom, such offer, solicitation or
sale may be unlawful under the laws of such jurisdiction. This press release does not constitute either advice or a recommendation regarding any securities. No offering of securities shall be made except by means of a prospectus meeting the
requirements of the Securities Act of 1933, as amended, or an exemption therefrom.
Forward Looking Statements
Certain statements included in this press release are not historical facts but are forward-looking statements, including for purposes of the safe harbor
provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as believe, may, will, estimate,
continue, anticipate, intend, expect, should, would, plan, project, forecast, predict, potential, seem,
seek, future, outlook, target, and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean
that a statement is not forward-looking. These forward-looking statements include, but are not limited to, (1) references with respect to the anticipated benefits of the Potential Business Combination and anticipated closing timing;
(2) the sources and uses of cash of the Potential Business Combination; (3) the anticipated capitalization and enterprise value of the combined company following the consummation of the Potential Business Combination; (4) current and
future potential commercial and customer relationships; and (5) anticipated investments in additional aircraft, capital resource, and research and development and the effect of these investments. These statements are based on various
assumptions,
whether or not identified in this press release, and on the current expectations of Jack Creeks and Bridgers management and are not predictions of actual performance. These
forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual
events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Bridger. These forward-looking statements are subject to a number of risks and
uncertainties, including: changes in domestic and foreign business, market, financial, political and legal conditions; the inability of the parties to successfully or timely consummate the Potential Business Combination, including the risk that any
required stockholder or regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the Potential Business Combination is not obtained;
failure to realize the anticipated benefits of the Potential Business Combination; risks relating to the uncertainty of the projected financial information with respect to Bridger; Bridgers ability to successfully and timely develop, sell and
expand its technology and products, and otherwise implement its growth strategy; risks relating to Bridgers operations and business, including information technology and cybersecurity risks, loss of requisite licenses, flight safety risks,
loss of key customers and deterioration in relationships between Bridger and its employees; risks related to increased competition; risks relating to potential disruption of current plans, operations and infrastructure of Bridger as a result of the
announcement and consummation of the Potential Business Combination; risks that Bridger is unable to secure or protect its intellectual property; risks that the post-combination company experiences difficulties managing its growth and expanding
operations; the ability to compete with existing or new companies that could cause downward pressure on prices, fewer customer orders, reduced margins, the inability to take advantage of new business opportunities, and the loss of market share; the
amount of redemption requests made by Jack Creeks shareholders; the impact of the COVID-19 pandemic; the ability to successfully select, execute or integrate future acquisitions into the business, which
could result in material adverse effects to operations and financial conditions; and those factors discussed in the sections entitled Risk Factors and Special Note Regarding Forward-Looking Statements in JCICs Quarterly
Report on Form 10-Q for the quarter ended March 31, 2022, JCICs Annual Report on Form 10-K for the year ended December 31, 2021, and in those documents
that JCIC or Wildfire New PubCo, Inc., a wholly owned subsidiary of Jack Creek (New PubCo) has filed, or will file, with the U.S. Securities and Exchange Commission (the SEC). If any of these risks materialize or our
assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. The risks and uncertainties above are not exhaustive, and there may be additional risks that neither Jack Creek nor
Bridger presently know or that Jack Creek and Bridger currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward looking statements reflect Jack
Creeks and Bridgers expectations, plans or forecasts of future events and views as of the date of this press release. Jack Creek and Bridger anticipate that subsequent events and developments will cause Jack Creeks and
Bridgers assessments to change. However, while Jack Creek and Bridger may elect to update these forward-looking statements at some point in the future, Jack Creek and Bridger specifically disclaim any obligation to do so. These forward-looking
statements should not be relied upon as representing Jack Creeks and Bridgers assessments as of any date subsequent to the date of this press release. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Important Information for Shareholders and Investors
The Potential Business Combination will be submitted to shareholders of Jack Creek for their consideration and approval at a special meeting of shareholders.
Jack Creek and Bridger will prepare a registration statement on Form S-4 (the Registration Statement) to be filed with the SEC by New PubCo, which will include preliminary and definitive proxy
statements to be distributed to Jack Creeks shareholders in connection with Jack Creeks solicitation for proxies for the vote by Jack Creeks shareholders in connection with the Potential Business Combination and other matters as
described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Jack Creeks shareholders and certain of Bridgers equityholders in connection with the completion of the Potential
Business Combination. After the Registration Statement has been filed and declared effective, Jack Creek will mail a definitive proxy statement and other relevant documents to its shareholders as of the record date established for voting on the
Potential Business Combination. Jack Creeks shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto and, once available, the definitive proxy
statement/prospectus, in connection with Jack Creeks solicitation of proxies for its special meeting of shareholders to be held to approve, among other things, the Potential Business Combination, because these documents will contain important
information about Jack Creek, Bridger and the Potential Business Combination. Shareholders may also obtain a copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Potential
Business Combination and other documents filed with the SEC by Jack Creek, without charge, at the SECs website located at www.sec.gov. Copies of these filings may be obtained free of charge on Jack Creeks Investor Relations
website at https://www.jackcreekinvestmentcorp.com/ or by directing a request to KSH Capital LP, Attention: Lauren Ores, 386 Park Avenue South, Floor 20, New York, NY 10016.
Participants in the Solicitation
Jack Creek and Bridger
and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of Jack Creeks shareholders in connection with the Potential Business Combination. Investors and security
holders may obtain more detailed information regarding Jack Creeks directors and executive officers in Jack Creeks filings with the SEC, including Jack Creeks Annual Report on Form 10-K filed
with the SEC on March 21, 2022. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Jack Creeks shareholders in connection with the Potential Business Combination, including
a description of their direct and indirect interests, which may, in some cases, be different than those of Jack Creeks shareholders generally, will be set forth in the Registration Statement. Shareholders, potential investors and other
interested persons should read the Registration Statement carefully when it becomes available before making any voting or investment decisions.
This
press release is not a substitute for the Registration Statement or for any other document that Jack Creek or New PubCo may file with the SEC in connection with the Potential Business Combination. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE
DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of other documents filed with the SEC by Jack Creek and
New PubCo through the website maintained by the SEC at http://www.sec.gov.
Exhibit 99.2 Bridger Aerospace Investor Presentation August
2022
Important Disclaimers Basis of Presentation This Presentation (this
“Presentation”) is provided for informational purposes only and has been prepared to assist interested parties in making their own evaluation with respect to a potential business combination between Bridger Aerospace Group Holdings, LLC
(“Bridger”, “Bridger Aerospace” or the “Company”) and Jack Creek Investment Corp. (“Jack Creek” or “JCIC”) and related transactions (the “Potential Business Combination”) and
for no other purpose. By accepting, reviewing or reading this Presentation, you will be deemed to have agreed to the obligations and restrictions set out below. No Offer or Solicitation This Presentation and any oral statements made in connection
with this Presentation do not constitute an offer to sell, or a solicitation of an offer to buy, or a recommendation to purchase, any securities in any jurisdiction, or the solicitation of any vote, consent or approval in any jurisdiction in
connection with the Potential Business Combination or any related transactions, nor shall there be any sale, issuance or transfer of any securities in any jurisdiction where, or to any person to whom, such offer, solicitation or sale may be unlawful
under the laws of such jurisdiction. This Presentation does not constitute either advice or a recommendation regarding any securities. No offering of securities shall be made except by means of a prospectus meeting the requirements of the Securities
Act of 1933, as amended, or an exemption therefrom. Industry and Market Data No representations or warranties, express, implied or statutory are given in, or in respect of, this Presentation, and no person may rely on the information contained in
this Presentation. To the fullest extent permitted by law, in no circumstances will Bridger or Jack Creek or any of their respective subsidiaries, stockholders, affiliates, representatives, partners, directors, officers, employees, advisers or
agents be responsible or liable for any direct, indirect or consequential loss or loss of profit arising from the use of this Presentation, its contents, its omissions, reliance on the information contained within it or on opinions communicated in
relation thereto or otherwise arising in connection therewith. This Presentation discusses trends and markets that Bridger’s leadership team believes will impact the development and success of Bridger based on its current understanding of the
marketplace. Industry and market data used in this Presentation have been obtained from third-party industry publications and sources as well as from research reports prepared for other purposes. Neither Jack Creek nor Bridger has independently
verified the data obtained from these sources and cannot assure you of the reasonableness of any assumptions used by these sources or the data’s accuracy or completeness. Any data on past performance or modeling contained herein is not an
indication as to future performance. This data is subject to change. Recipients of this Presentation are not to construe its contents, or any prior or subsequent communications from or with Jack Creek, Bridger or their respective representatives as
investment, legal or tax advice. The Recipient should seek independent third party legal, regulatory, accounting and/or tax advice regarding this Presentation. In addition, this Presentation does not purport to be all-inclusive or to contain all of
the information that may be required to make a full analysis of Bridger or the Potential Business Combination. Recipients of this Presentation should each make their own evaluation of Bridger and of the relevance and adequacy of the information and
should make such other investigations as they deem necessary. Jack Creek and Bridger assume no obligation to update the information in this Presentation. 2
Important Disclaimers Forward Looking Statements Certain statements
included in this Presentation are not historical facts but are forward-looking statements, including for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements
generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,”
“would,” “plan,” “project,” “forecast,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” “target,” and
similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include,
but are not limited to, (1) statements regarding estimates and forecasts of other financial and performance metrics and projections of market opportunity; (2) references with respect to the anticipated benefits of the Potential Business Combination
and the projected future financial performance of Bridger and Bridger’s operating companies following the Potential Business Combination; (3) changes in the market for Bridger’s services and technology, and expansion plans and
opportunities; (4) Bridger’s unit economics; (5) the sources and uses of cash of the Potential Business Combination; (6) the anticipated capitalization and enterprise value of the combined company following the consummation of the Potential
Business Combination; (7) the projected technological developments of Bridger, (8) current and future potential commercial and customer relationships; (9) the ability to operate efficiently at scale; (10) anticipated investments in additional
aircraft, capital resource, and research and development and the effect of these investments; (11) the amount of redemption requests made by Jack Creek’s public shareholders; (12) the ability of the combined company to issue equity or
equity-linked securities in the future; and (13) expectations related to the terms and timing of the Potential Business Combination. These statements are based on various assumptions, whether or not identified in this Presentation, and on the
current expectations of Jack Creek’s and Bridger’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be
relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and
circumstances are beyond the control of Bridger. These forward-looking statements are subject to a number of risks and uncertainties, including: changes in domestic and foreign business, market, financial, political and legal conditions; the
inability of the parties to successfully or timely consummate the Potential Business Combination, including the risk that any required stockholder or regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that
could adversely affect the combined company or the expected benefits of the Potential Business Combination is not obtained; failure to realize the anticipated benefits of the Potential Business Combination; risks relating to the uncertainty of the
projected financial information with respect to Bridger; Bridger’s ability to successfully and timely develop, sell and expand its technology and products, and otherwise implement its growth strategy; risks relating to Bridger’s
operations and business, including information technology and cybersecurity risks, loss of requisite licenses, flight safety risks, loss of key customers and deterioration in relationships between Bridger and its employees; risks related to
increased competition; risks relating to potential disruption of current plans, operations and infrastructure of Bridger as a result of the announcement and consummation of the Potential Business Combination; risks that Bridger is unable to secure
or protect its intellectual property; risks that the post-combination company experiences difficulties managing its growth and expanding operations; the ability to compete with existing or new companies that could cause downward pressure on prices,
fewer customer orders, reduced margins, the inability to take advantage of new business opportunities, and the loss of market share; the amount of redemption requests made by Jack Creek's shareholders; the impact of the COVID-19 pandemic; the
ability to successfully select, execute or integrate future acquisitions into the business, which could result in material adverse effects to operations and financial conditions; and those factors discussed in the Appendix to this Presentation and
set forth in the section entitled “Risk Factors” and “Special Note Regarding Forward-Looking Statements” in Jack Creek’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, Jack Creek's Annual Report on
Form 10-K for the year ended December 31, 2021, and in those documents that Jack Creek and Wildfire New PubCo, Inc., a wholly owned subsidiary of Jack Creek (“New PubCo”), has filed, or will file, with the U.S. Securities and Exchange
Commission (the “SEC”). If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. The risks and uncertainties above are not
exhaustive, and there may be additional risks that neither Jack Creek nor Bridger presently know or that Jack Creek and Bridger currently believe are immaterial that could also cause actual results to differ from those contained in the
forward-looking statements. In addition, forward looking statements reflect Jack Creek’s and Bridger’s expectations, plans or forecasts of future events and views as of the date of this Presentation. Jack Creek and Bridger anticipate
that subsequent events and developments will cause Jack Creek’s and Bridger’s assessments to change. However, while Jack Creek and Bridger may elect to update these forward-looking statements at some point in the future, Jack Creek and
Bridger specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing Jack Creek’s and Bridger’s assessments as of any date subsequent to the date of this Presentation.
Accordingly, undue reliance should not be placed upon the forward-looking statements. 3
Important Disclaimers Trademarks Jack Creek and Bridger own or have
rights to various trademarks, service marks and trade names that they use in connection with the operation of their respective businesses. This Presentation also contains trademarks, service marks, trade names and copyrights of third parties, which
are the property of their respective owners. The use or display of third parties’ trademarks, service marks, trade names or products in this Presentation is not intended to, and does not imply, a relationship with Jack Creek or Bridger, an
endorsement or sponsorship by or of Jack Creek or Bridger, or a guarantee the Bridger or Jack Creek will work or will continue to work with such third parties. Solely for convenience, the trademarks, service marks, trade names and copyrights
referred to in this Presentation may appear without the TM, SM, ® or © symbols, but such references are not intended to indicate, in any way, that Jack Creek, Bridger, or the any third-party will not assert, to the fullest extent under
applicable law, their rights or the right of the applicable licensor to these trademarks, service marks, trade names and copyrights. Non-GAAP Financial Measures Some of the financial information and data contained in this Presentation, such as
Adjusted EBITDA (“Adj. EBITDA”), Adjusted EBITDA margin (“Adj. EBITDA margin”), Growth Capital Expenditures (“Growth CapEx”), Maintenance and Miscellaneous Capital Expenditures (“Maintenance and
Miscellaneous CapEx”) and Free Cash Flow, have not been prepared in accordance with United States generally accepted accounting principles (“GAAP”). Adjusted EBITDA is defined as net earnings (loss) before interest expense, income
tax expense (benefit), depreciation and amortization, as adjusted to exclude non-cash items or certain transactions that management does not believe are indicative of ongoing Company operating performance, which were losses on disposals of assets
and legal fees related to financing transactions for 2021. Growth Capital Expenditures is defined as capital expenditures relating to the acquisition of new aircraft and facilities (other than replacement aircraft and facilities), and Maintenance
and Miscellaneous Capital Expenditures is defined as Capital Expenditures less Growth Capital Expenditures. Free Cash Flow is defined as Adjusted EBITDA less Maintenance and Miscellaneous Capital Expenditures. These non-GAAP financial measures, and
other measures that are calculated using such non-GAAP measures, are an addition to, and not a substitute for or superior to, measures of financial performance prepared in accordance with GAAP and should not be considered as an alternative to
revenue, operating income, profit before tax, net income or any other performance measures derived in accordance with GAAP. A reconciliation of the projected non-GAAP financial measures has not been provided and is unable to be provided without
unreasonable effort because certain items excluded from these non-GAAP financial measures cannot be reasonably calculated or predicted at this time. For the same reasons, Bridger is unable to address the probable significance of the unavailable
information, which could be material to future results. Jack Creek and Bridger believe these non-GAAP measures of financial results, including on a forward-looking basis, provide useful information to management and investors regarding certain
financial and business trends relating to Bridger’s financial condition and results of operations. Bridger’s management uses these non-GAAP measures for trend analyses, for purposes of determining management incentive compensation, and
for budgeting and planning purposes. Jack Creek and Bridger believe that the use of these non-GAAP financial measures provides an additional tool for investors to use in evaluating projected operating results and trends in and in comparing
Bridger’s financial measures with other similar companies, many of which present similar non-GAAP financial measures to investors. However, there are a number of limitations related to the use of these non-GAAP measures and their nearest GAAP
equivalents. For example, other companies may calculate non-GAAP measures differently, or may use other measures to calculate their financial performance, and therefore Bridger’s non- GAAP measures may not be directly comparable to similarly
titled measures of other companies. See the Appendix for reconciliations of these non-GAAP financial measures to the most directly comparable GAAP measures. Use of Projections This Presentation contains projected financial information with respect
to Bridger, namely revenue, gross profit, Adjusted EBITDA, Adjusted EBITDA margin, Growth Capital Expenditures, Maintenance and Miscellaneous Capital Expenditures, and free cash flow for 2022-2023. Such projected financial information constitutes
forward-looking information, and is for illustrative purposes only and should not be relied upon as necessarily being indicative of future results. The projections, estimates and targets in this Presentation are forward-looking statements that are
based on assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond Jack Creek’s and Bridger’s control. See “Forward-Looking Statements” above. The assumptions and
estimates underlying the projected, expected or target results are inherently uncertain and are subject to a wide variety of significant business, weather, economic, regulatory, competitive, technological, and other risks and uncertainties that
could cause actual results to differ materially from those contained in such projections, estimates and targets. The inclusion of projections, estimates and targets in this Presentation should not be regarded as an indication that Jack Creek and
Bridger, or their representatives, considered or consider the financial projections, estimates and targets to be a reliable prediction of future events. Neither the independent auditors of Jack Creek nor the independent registered public accounting
firm of Bridger has audited, reviewed, compiled or performed any procedures with respect to the projections for the purpose of their inclusion in this Presentation, and accordingly, neither of them expressed an opinion or provided any other form of
assurance with respect thereto for the purpose of this Presentation. 4
Important Disclaimers Important Information for Investors and
Stockholders The Potential Business Combination will be submitted to shareholders of Jack Creek for their consideration and approval at a special meeting of shareholders. Jack Creek and Bridger will prepare a registration statement on Form S-4 (the
“Registration Statement”) to be filed with the SEC by New PubCo, which will include preliminary and definitive proxy statements to be distributed to Jack Creek’s shareholders in connection with Jack Creek’s solicitation for
proxies for the vote by Jack Creek’s shareholders in connection with the Potential Business Combination and other matters as described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be
issued to Jack Creek’s shareholders and certain of Bridger’s equityholders in connection with the completion of the Potential Business Combination. After the Registration Statement has been filed and declared effective, Jack Creek will
mail a definitive proxy statement and other relevant documents to its shareholders as of the record date established for voting on the Potential Business Combination. Jack Creek’s shareholders and other interested persons are advised to read,
once available, the preliminary proxy statement/prospectus and any amendments thereto and, once available, the definitive proxy statement/prospectus, in connection with Jack Creek’s solicitation of proxies for its special meeting of
shareholders to be held to approve, among other things, the Potential Business Combination, because these documents will contain important information about Jack Creek, Bridger and the Potential Business Combination. Shareholders may also obtain a
copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Potential Business Combination and other documents filed with the SEC by Jack Creek, without charge, at the
SEC’s website located at www.sec.gov. Copies of these filings may be obtained free of charge on Jack Creek’s “Investor Relations” website at https://www.jackcreekinvestmentcorp.com/ or by directing a request to KSH Capital
LP, Attention: Lauren Ores, 386 Park Avenue South, FL 20 New York, NY 10016. Jack Creek and Bridger and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of Jack
Creek’s shareholders in connection with the Potential Business Combination. Investors and security holders may obtain more detailed information regarding Jack Creek’s directors and executive officers in Jack Creek’s filings with
the SEC, including Jack Creek’s Annual Report on Form 10-K filed with the SEC on March 21, 2022. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Jack Creek’s
shareholders in connection with the Potential Business Combination, including a description of their direct and indirect interests, which may, in some cases, be different than those of Jack Creek’s shareholders generally, will be set forth in
the Registration Statement. Shareholders, potential investors and other interested persons should read the Registration Statement carefully when it becomes available before making any voting or investment decisions. This Presentation is not a
substitute for the Registration Statement or for any other document that Jack Creek and New PubCo may file with the SEC in connection with the Potential Business Combination. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DOCUMENTS FILED WITH
THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of other documents filed with the SEC by Jack Creek and New PubCo through the
website maintained by the SEC at http://www.sec.gov. Changes and Additional Information in Connection with SEC Filings The information in this Presentation has not been reviewed by the SEC and certain information, such as financial measures
referenced herein, may not comply in certain respects with SEC rules. As a result, the information in the Registration Statement may differ from this Presentation to comply with SEC rules. The Registration Statement will include substantial
additional information about Bridger and Jack Creek not contained in this Presentation. Once filed, the information in the Registration Statement will update and supersede the information presented in this Presentation. INVESTMENT IN ANY SECURITIES
DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE POTENTIAL BUSINESS COMBINATION OR THE ACCURACY OR ADEQUACY OF THE INFORMATION
CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. 5
Table of Contents Executive Summary 7 The Bridger Solution 16 Growing
Market and Demand 23 Financial Overview 28 34 Transaction Details and Benchmarking 6
Executive Summary
Bridger Aerospace at-a-Glance (1) Business Description Financial Profile
($ in Millions) 60% § Bridger Aerospace (“Bridger Aerospace”, “Bridger” or the 52% “Company”) provides full-spectrum aerial firefighting solutions $106 to Federal and State government agencies 27% $75 §
Founded in 2014, Bridger is building out and plans to be $64 (2) operating a purpose-built fleet of 21 aircraft by Q4 2022 $39 $39 § Bridger is one of the largest owner/operators of the CL-415EAF, a purpose-built fire suppression aircraft $11
§ The Company is also developing FireTRAC, an app-based Bridger Provides a interface designed to integrate near real-time imagery and 2021A 2022E 2023E Complete analysis on fire location, intensity, size and weather patterns Contractor-Owned,
Revenue Adj. EBITDA Adj. EBITDA Margin Contractor-Operated (“COCO”) Aerial Bridger Aerospace Fleet Overview Marquee Federal and State Customer Base (2) CL-415EAF Super Scoopers (6 planes) Firefighting Solution Operates largest domestic
fleet of CL-415EAF “Super Scoopers” (3)(4) Air Attack (13 planes) Provides a scaled Air Attack platform (2) Unmanned Aerial Systems (2 UASs) Enables the next generation of firefighting situational awareness Source: Bridger management.
(1) See slide 41 for a reconciliation of GAAP Net Income to 2021A Adj. EBITDA. (2) Based on delivery of one additional Viking Air CL-415EAF scheduled for delivery in October 2022 as well as the conveyance of two (2) UAS platforms scheduled for
delivery in August 2022 that were subjected to production delays. 8 (3) Deployed fleet of Twin Commander, Daher Kodiak 100, Twin Otter and Pilatus PC-12 that provides aerial situational awareness and support to the CL-415EAF fleet during active
firefighting missions. (4) Air Attack defined as an airplane that flies over an incident, providing tactical coordination with the incident commander and other fire suppression aircraft.
Bridger’s Critical Mission Bridger’s Mission is to Fight
Wildfires that Cause Hundreds of Billions of Dollars of Economic Damage and Emit Hundreds of Millions of Metric Tons of CO into the 2 Mitigate economic Minimize Directly attack CO Atmosphere 2 loss as wildfire environmental harm emissions to combat
Annually severity, frequency through eco-friendly climate change and damage rises and sustainable firefighting methods Source: AccuWeather, Bankrate, ABC10 and CalMatters. 9
Entrepreneurial Management Team With a Track Record of Success Bridger
is Led by an Experienced Executive Team with a Track Record of Tim Sheehy Darren Wilkins McAndrew Rudisil James Muchmore Successfully Chief Executive Officer Chief Operating Officer Chief Investment Officer Chief Legal Officer Developing Businesses
n Founded Bridger Aerospace n Joined Bridger Aerospace in n Joined Bridger Aerospace n Joined Bridger Aerospace in in 2014 2018 as COO in 2017 as CIO 2017 as Chief Legal Officer n Former Navy SEAL and n Former Naval
Flight Officern Extensive experience n Extensive securities certified pilot successfully building and regulation, litigation and n Deep experience leading growing businesses aviation law experience n Former CEO and Founder of
large, complex military Ascent Vision Technologies operations 10
Jack Creek Investment Corp. Jack Creek and JCIC Management Team
at-a-Glance n JCIC, a special purpose acquisition company (“SPAC”), n Proven track record of creating value in public and private (1) holds ~$345 million cash in trust markets across numerous industries n Robust history of
entrepreneurship, innovation, n Strong credibility with public market shareholders investment, operations and executive leadership n Deep expertise in managing high-growth organizations n Extensive experience accessing and allocating
capital while mitigating stakeholder risk Jack Creek Management Team Investment Corp. (“Jack Creek” or “JCIC”) Team Brings an Exceptional Track Record of Jeffrey Kelter Robert Savage Thomas Jermoluk James Clark Creating
Executive Chairman CEO President CTO Shareholder Value in Both the Public and Private Markets as Founders, Operators Independent Board and Investors Samir Kaul Rich Noll Heather Hartnett Founding Partner & Managing Chairman, Reynolds CEO &
Co-Founder, Consumer Products Director, Khosla Ventures Human Ventures Source: JCIC management, SEC filings. th (1) As of June 30 , 2022. 11
A Uniquely Qualified Leadership Team that is Aligned with Shareholders
Post-Merger (1) Board of Directors n Jack Creek, founded on August n Bridger’s management team has Jeffrey Kelter 31, 2020, has ~$345 million an extensive track-record of Chairman and Director (2) cash in trust leading and growing
businesses, Bridger’s Post- particularly within the Aerospace, n Management team has a history Robert Savage Transaction Board of Defense and Energy sectors Director of building high-performing, Directors Will be n Expertise in
aerial wildfire publicly-traded technology, real management, relief and estate and logistics businesses Critical to its Tim Sheehy suppression, delivering powerful CEO, Founder and Director Continued Success n KSH Capital’s founders
(Jeffrey firefighting services using next- + = Kelter and Robert Savage) have Due to a Diversity of generation technology McAndrew Rudisill produced approximately $10B in Experience and CIO and Director n Industry, operational and total
realized returns at ~25% Complementary financial expertise de-risks and per annum accelerates organic growth Matt Sheehy Capabilities n Knowledge and experience Director n Management team has a track operating successful public record of
successfully executing companies crucial in creating Debra Coleman strategic M&A significant value for shareholders Director n Members of the management team sold Ascent Vision Todd Hirsch Technologies to CACI for ~$350 Director million in
2020 Source: Defense Daily, JCIC management and SEC filings. (1) Plus an additional 2 directors to be determined for a total board size of 9 directors. 12 th (2) As of June 30 , 2022.
Why Bridger is Going Public Enhance public support and awareness of
Bridger, particularly in a market without a significant number of public-ready, fundamentally-driven ESG businesses Provide public currency for strategic growth As a Public Company, Bridger Expects to Enhance its Profile and Rapidly Execute on
Attract and retain skilled employees its Strategic Initiatives Ability to raise capital more efficiently Offer enhanced transparency and strong governance as the only publicly traded aerial firefighting business 13
Business Combination Overview n Business combination between
Bridger and JCIC, a publicly listed SPAC with ~$345 million cash in Transaction trust Structure n No PIPE is required to close the transaction n Transaction is expected to close in Q4 2022 (1)(3) (2) n Pro-forma enterprise value of
$869 million , with a well-capitalized balance sheet The Transaction is Straightforward with n Company is positioned to execute on its business plan and strategic initiatives post-merger Valuation (1) (2) No PIPE and No n Valuation
represents a 13.7x CY2023E EV / Adj. EBITDA Multiple , which is at a slight (4) Minimum Cash discount to public comps Threshold Requirement Pro Forma (1) n Assuming no redemptions, Bridger would expect to receive ~$323 million in cash to its
balance Capital (5) sheet, net of an estimated ~$22 million in fees and expenses associated with the transaction Structure n 63% Existing Bridger Shareholders Pro Forma n 31% JCIC Public Shareholders (1) (3) Ownership n 6% JCIC
Sponsor and Independent Directors Note: Illustrative figures subject to change. Figures reflect estimated balances as of 2022 year-end. (1) Transaction structure assumes no redemptions. (2) See slide 35 for pro-forma enterprise value calculation and
related key assumptions. 14 (3) Excludes 20% of Sponsor's founder shares (after giving effect to any forfeitures) that are subject to forfeiture based on a performance-based vesting schedule ( Earnout Shares ). Subject to adjustment if (i) the
amount in the JCIC trust account remaining after redemptions is less than $20 million and (ii) the aggregate transaction expenses of either Bridger or Jack Creek, respectively, exceed $6.5 million. See footnote 3 on Slide 40 for additional
information. (4) See Slide 37 for additional information on public comparables valuations. (5) Fees and expenses are subject to change and excludes $12.075 million deferred underwriting fees from JCIC's IPO; see footnote 6 on Slide 35 for additional
detail.
Investment Highlights Full Service, COCO Wildfire Fighting Platform
Utilizing Leading, Purpose-Built Technology Rapidly Expanding Market Due to Increased Wildfire Season Length, Geographic Breadth and Severity Sustainability Practices: Directly and Quantifiably Combating Major Sources of CO Emissions 2 Recurring
Revenue Model Supported by Long-Term Government Contracts Near Real-Time Insight via the FireTRAC Data Integration Platform 15
The Bridger Solution
Bridger’s Platform is Designed to Solve a Growing and Evolving
Problem Wildfire Risks are …Yet There is Inadequate Scale, Bridger Aerospace Provides a Increasing… Response and Coordination Full-Fledged, Modern Solution n Deploy highly efficient aerial firefighting assets Company A Company B
Company C tailored towards diverse perimeter and suppression Operator of 4 converted O p e r a t o r of 7 land-based Operator of 9 BAE 146 (1) applications DC-10 Air Tankers tankers and 4 CL-415s firefighting aircraft Bridger Invests in n
Integrate data, analytics and reporting to optimize resource deployment Tactically-Relevant n Provide a fully-integrated firefighting solution to Suppression combat the escalating risks and associated carbon Technologies to Wildland-Urban
Interface Legacy fleets that rely primarily on large tankers, emissions (“WUI”) and climate change Efficiently Address tailored to perimeter applications that are not as (1) leading to more severe wildfires well-suited to serve WUI
environments as Bridger and Combat the and increased economic damage Growing Threat of Economic and Environmental Damage Caused by Wildfires Disparate data sources, analytics and operators result in inefficient wildfire suppression Wildfire severity
increases CO 2 emissions, perpetuating global climate change Source: US Forest Service, World Resources Institute and the US Fire Administration. Note: Competitor information sourced from publicly available materials. 17 (1) See slides 18 and 20 for
additional information.
Bridger’s Scooper Fleet Provides Unique Firefighting Capabilities
n The CL-415EAF is an amphibious aerial firefighting aircraft outfitted with upgraded avionics and high-powered turbine engines n Unique aeronautical design enables tight maneuvering at low altitudes and airspeeds, allowing for
high-precision suppression n Ability to utilize natural water sources enables ~50% more time-on-duty per mission than other aerial firefighting aircraft Bridger is a Scaled Owner / Operator of the CL-415EAF, a Purpose-Built Fire Suppression
Aircraft 207 MPH 50% + Cruise Lower Drop Speed (1) Height 1.5k Gallons 50k Tank Capacity Gallons (2) Dropped / Day 90% of Fires Within 8 20 Miles of Hours Scooper-accessible (3) Bodies of Water Daily Active Firefighting Time Source: National
Interagency Fire Center, CalFire, WinAir, RAND Corporation, Bridger management estimates and Viking Air OEM specifications and marketing. (1) Compared to larger aerial firefighting platforms, i.e., Boeing 747 Supertanker and McDonnell Douglas DC-10.
18 (2) Assumes scoopable water is 5 miles away; Scooper can drop ~35 times (49,123 gallons) within 4 hours. (3) Includes seasonal water bodies without regard to season and no adjustments to the suitability of a water source based on its likely size
at a given time of year. Also assumes that the Company has permission to draw from these bodies of water.
Bridger Deploys a Multi-Layered Fleet of Highly Capable Aircraft (1)
2022E Fleet Size Suppression n Viking Air CL-415EAF Super Scooper, an upgrade of the original CL-415 n Using local water, the Super Scooper can drop 50k gallons before refueling 6 n Highly capable and cost-efficient aircraft Bridger
Plans to Increase its Fleet of Air Attack Aircraft to Further n Twin Commander; Daher Kodiak 100; Pilatus PC-12; Twin Otter Fire Suppression Capabilities and n Advanced short takeoff and landing aircraft 13 Response Times n Utilizes
fuel efficient aircraft models n Bridger leverages the latest sensor and communication technologies Unmanned Aerial System (“UAS”) n Delivers imagery over active wildfires n Provides situational awareness in night
operations and low 2 visibility conditions (1) Based on delivery of an additional Viking Air CL-415EAF scheduled for delivery in October 2022 as well as the conveyance of two (2) UAS platforms scheduled for delivery in August 2022 that were
subjected to production delays. 19
Bridger Delivers More Complete and Effective Fire Suppression
Capabilities Illustrative Perimeter (1) Solution Provider Multiple Layers of Aircraft Single Airframe Models Fleet Type Bridger Offers 6-10 Fleet Size > 20 and Scaling Differentiated 1,000+ Drop Altitude 100 Solutions to Combat (Feet) the
Evolving (2) (feet) ~50,000 30-50,000 Daily Productivity Challenges of Aerial (Gallons) Firefighting ~3 hours Rel(oad gallon T si)me < 1 minute Limited Near Real-time Data FireTrac Data Platform (3) (4) Direct Attack Indirect Attack Use Case
“Scoopers are considerably less expensive to own and operate than larger helicopters and fixed-wing airtankers. When fires are near water, scoopers can drop more water than airtankers can drop retardant. At least two-thirds of historical fires
have been within ten miles of a scooper-accessible body of water.” Rand Corporation, Air Attack Against Wildfires Source: Bridger management, Viking Air OEM specifications and marketing. (1) Based on comparisons to large air tankers
(“LAT”) and very large air tankers (“VLAT”) that primarily drop retardants. (2) Assumes scoopable water is 5 miles away; Scooper can drop ~35 times (49,123 gallons) within 4 hours. 20 (3) Indirect Attack platforms are
retardant-based and are used to create a fire line, preventing further spread of flames. (4) Direct Attack platforms are water-based and are dropped directly on flames to combat wildfires immediately.
Extensive US Footprint Serving Mission Critical Geographies Long-Term
Contracts With Federal Federal Agencies Expected to Represent and State Firefighting Agencies ~75%+ of Revenue in FY2022E Forward Federal State & Local 2021A Revenue by End Customer 6% Bridger Maintains 18% a 100% Renewal Rate on its Core
Federal and State 74% Contracts Recent Contract Awards 2021 Awards 2022 Awards n USFS National n Department of Scooper Solicitation Interior (“DOI”) and BLM National n USFS Air Attack Federal forest and land agencies
continue to take a proactive Contracts n Montana Scooper role in fire management and suppression, creating a large n Various Annual State n Various State Annual opportunity with the US Forest Service (“USFS”) and the
Contracts Contracts Bureau of Land Management (“BLM”) Source: National Interagency Fire Center, Bridger management. 21
FireTrac: Next-Gen Wildfire Data, Surveillance and Reporting Platform
Data Technology n Combine Bridger’s proprietary in-flight imaging capabilities with n Near real-time interface to inform users of potential wildfire published governmental data impacts n Consolidated information, imagery and
data regarding critical n Interactive mapping solutions to help visualize fires within a wildfire incidents geospatial context n Layered data to analyze fire intensity, size,n Provide push notifications of detected activity near (1)
location and weather patterns watched addresses to a user’s mobile device FireTrac Integrates n Centralized information source for near real-time, relevant wildfire data Proprietary Data and Technology to Leading fire map and sensor data
capabilities Deliver Unique ü Insights on Fire Risk Near real-time imagery of key fire incidents ü Satellite and weather data ü User uploaded data ü Social media style Hive-based reporting and updates ü Source: National
Interagency Fire Center, Bridger management. (1) Future release feature. 22
Growing Market and Demand
Rising and Evolving Wildfire Risks Threaten Communities More Severe
Wildfire Season Wildland-Urban Interface Changes in Temperatures and Precipitation Levels Insufficient Firefighting Capacity Lack of Real-Time Insights Are Increasing the Magnitude of Wildfires and Adding Weeks to Destructive Fire Seasons “The
challenge is huge. We now have around 70,000 communities at risk from wildfire, and only 6,000 of them — less than 10 percent — have community wildfire protection plans.” Tom Tidwell - Former Chief of the United States Forest
Service Source: US Forest Service, Bridger management. 24
As WUI Areas Expand, the Scale of Damages from Wildfires is Expected to
Increase Residential Growth in Fire-Prone, …Has Resulted in a Higher Number Wildland-Urban Interface Areas… of Acres Burned per Fire Total Acres Burned in California by the Growth Rate of Homes in the WUI by County (1990 – 2010)
(1) 20 Largest Wildfires of All Time Intensity and 2021 Magnitude of Forest Fires Have 23% Pre-2020 Multiplied as a ~60% of Total Acres 41% Burned by the Largest Result of the 20 Wildfires of All Time Expanding WUI, Have Occurred in the with 9 of
the Last 2 Years Largest 20 Fires in 36% California History 2020 2020 Occurring in the < 0% 0% – 25% 25% – 75% > 75% Past Two Years § New WUI areas have expanded by more than 46 million § Growth in the WUI and increasing
global temperatures have acres (33%) over the 1990-2010 period led to a five-fold increase in annual acres burned per fire over the past 35 years § WUI areas now include 1/3 of all homes in the US within 10% of the nation’s land
area§ Total number of US acres burned annually has increased more than three-fold since 1985 § The population growth in at-risk areas for wildfires will require more aggressive firefighting strategies§ Dixie (CA, 2021) and August
Complex (CA, 2020) were two of the most historically damaging wildfires, burning a combined ~2 million acres Source: US Forest Service, National Interagency Fire Center and CalFire. (1) Figures represent cumulative statistics as of January 13, 2022.
25
Large Market With Strong Demand for Air-Based Suppression Technologies
Aerial Suppression Spend Represented ~45% … and the Market is Anticipated to Continue to (1) of the $14 Billion Firefighting Market in 2021 … Expand as Wildfires Rage Across Europe and the US Air-Based Suppression Greece Faces Disaster
Wildfires Rage Across Wildfires Ravage Federal and State Data of Unprecedented Southern Italy as Its Alaska with 264 Active Agencies Have Proportion Rivers Dry Up Individual Fires Burning $4.0bn $3.0bn Become Increasingly COCO Motivated to Outsource
Aerial (2) $0.2bn GOCO Firefighting to More $5.0bn $2.2bn Ground (2) Effectively Combat GOGO the Increasing Presence and Intensity of Wildfires § There is a rapidly growing need globally for fire suppression § These events represent active
Summer 2022 wildfires and assets emphasize the need for increased wildfire suppression resources globally § The shift away from ground towards more air-based suppression has already commenced§ In traditional wildfire areas, wildfire
intensity and duration are increasing, and total wildfire impact is spreading into § Unfilled requests for large airtankers has nearly grown three- new regions as global temperatures rise fold since 2015; in 2020, 40% of Super Scooper requests
and 34% of all large airtanker requests were unfilled Source: National Interagency Coordination Center, CNN, CBS, The Guardian and Bridger management estimates. (1) Reflects Bridger management estimates, informed by multiple reports. 26 (2) GOCO:
Government Owned and Contractor Operated; GOGO: Government Owned and Government Operated.
Wildfires Present a Significant and Growing Environmental Hazard
Increased Wildfires, CO Levels and Temperatures Annual Wildfire CO Emissions are Among the 2 2 Are Part of a Vicious Cycle Most Harmful Pollutants > 110 Million Metric tons of CO released by California 2 wildfires in 2020 is equivalent to…
Bridger Proactively Combats Climate Change by Mitigating a Major Source of ~24 Million ~13 Billion Cars Driving for Gallons of Gasoline CO Emissions 2 One Year Consumption ~38 Million ~2 Billion Tons of Waste Tree Seedlings Would Need Landfilled vs
Recycled to be Grown for 10 years to Account for CO Sequestration 2 Source: National Oceanic and Atmospheric Administration, National Aeronautics and Space Administration and Bloomberg Law. 27
Financial Overview
A Longer Active Fire Season is Extending Operators’ Flight Hours
Climate Change has Elongated the Active Fire Season Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Maintenance, Training & Active Fire Season Maintenance FAA re-certification period (each CL-415EAF has the ability to fly 450 hours during this
period) Period 120-day initial 30-day 30-day 30-day extension extension extension task order 90 to 120-day total extension Each contract primarily contains two main revenue components Standby Flight A B (daily rate) (hourly rate) Source: Bridger
management. 29
Favorable Contract Mechanics and Terms A B Standby Days Flight Hours
§ Bridger estimates total standby days in the § Bridger estimates a run-rate amount of projection period flight hours based on past performance and standby days § 2021 figures represent 60% of a normal season due to aircraft
delivery§ Each plane can fly up to a total of 450 hours per year § Average initial task orders contract for 120 standby days Bridger Aerospace Average CL-415EAF Average CL-415EAF Standby Days per Scooper Flight Hours per Scooper Utilizes
Contracted (1) (1) 145 135 325 325 325 119 Standby Days to Provide Long-Term Revenue Visibility 2021A 2022E 2023E 2021A 2022E 2023E and Captures Upside from Increased Flight Hours, Paid Hourly Long-term contract nature (avg. Same assets listed for
Direct cost pass through tenor ranges from 1-5 years) multiple agency contracts Complete fuel price Annual Price Escalators Flight hours uncapped (2) protection Source: Bridger management estimates. (1) Normalized for 317 total Standby Days and 837
total Flight Hours flown over an average of ~2.7 CL-415EAF aircraft throughout the year. 30 (2) For CL-415EAFs while on contract.
Attractive Aircraft Unit Economics Drive Margins with Fleet Expansion
(1) 2023E Average Total Cost of One-time investment to purchase $32 million New Scooper Delivered new Super Scooper Adj. EBITDA Bridger Has an High ROI per Super Scooper $10 million per Super Scooper Attractive ~Three-Year Payback on New Super
Scooper Aircraft Maintenance and New planes require limited annual Miscellaneous CapEx per Maintenance and Miscellaneous ~$600K New Domestic Super CapEx after initial investment Scooper Approximate three-year average Bridger Aerospace payback period
allows for rapid (2) Average Super Scooper ~3.2 years reinvestment and continued fleet Payback Period growth Source: Business Insider, Skies Magazine, Fire Aviation and Bridger management. th (1) Adj. EBITDA calculated on a per-plane basis. Assumes
the average full-year run-rate for seven (7) CL-415EAFs and that the remaining (7 ) Super Scooper is acquired in 2023. 31 (2) Calculation assumes 2023E Adj. EBITDA run-rate as a proxy for annual payback per each aircraft.
Multiple Efficiencies Driving Margin Improvement n Bridger is at
an inflection point where margins are expected to continue to increase due to high-capacity utilization, fleet ~60% Adj. expansion and the benefit of prior cost incurrence EBITDA Margin n The Bridger business creates a significant amount of
operating ~30% Adj. leverage EBITDA Margin (1) 2021A 2023E Bridger is Primed to Building Blocks of Increasing Margin Recognize Margin Optimization as the Bridger offers a market leading platform Bridger is expected to continue to Platform Increased
Demand Fleet Expands in wildfire management with a modern command above-average flight hour fleet and long-standing federal and state and standby day rates due to a superior agency relationships product offering Scaled Admin. Unit Efficiency Fire
suppression expertise and a robust Operating and administrative expenses maintenance and training program are are not expected to scale in-line with the anticipated to create cost efficiencies fleet size for fleet management Source: Bridger
management estimates (1) See Slide 41 for a reconciliation of 2021 Adjusted EBITDA to GAAP net income. 32 Cost (% Revenue) Revenue ($)
Financial Overview n Although Bridger’s Super Scooper fleet
only comprises ($ In Millions) Pro Forma Val2021A uation 2022E 2023E ~30% of total fleet count, the CL-415EAF’s leading CL-415EAF $30.4 $64.5 $90.6 operating performance contributes to the majority of Air Attack 8.1 6.3 11.3 top-line sales via
higher standby and flight hour rates UAS 0.4 3.3 3.5 Other (Maintenance, Admin) 0.5 0.6 0.8 n Bridger’s Growth Capital Expenditures requirements are Total Revenue $39.4 $74.7 $106.1 heavily weighted towards expanding the CL-415EAF Less:
COGS (20.5) (23.2) (26.7) Gross Profit $18.9 $51.5 $79.3 n Expenses associated with operating additional Gross Profit Margin % 48.0% 69.0% 74.8% CL-415EAF aircraft are not expected to scale in-tandem with growth Less: G&A and Other Income
(8.3) (13.0) (15.8) − Bridger gains incremental operating leverage as (1) Adj. EBITDA $10.5 $38.6 $63.6 more Super Scoopers are acquired Adj. EBITDA Margin % 26.7% 51.6% 59.9% n Cash on hand from the Series C capital raise, municipal
Maintenance and Miscellaneous CapEx (5.5) (4.1) (5.9) bond financing and free cash flow generation is (2) Free Cash Flow $5.0 $34.4 $57.6 projected to fully finance Bridger’s growth projections Growth CapEx $54.2 $39.1 $82.7 Source: Bridger
management estimates. (1) See slide 41 for a reconciliation of GAAP Net Income to 2021A Adj. EBITDA. 33 (2) Defined as Adj. EBITDA less Maintenance and Miscellaneous CapEx.
Transaction Details and Benchmarking
Detailed Transaction Overview Pro Forma Valuation Valuation and Capital
Structure Pro-Forma Valuation (1)(2)(3)(7) n Fully diluted pro-forma enterprise value of $869 Pro Forma Shares 110.884 million, representing 13.7x CY2023E Adj. EBITDA of Assumed Share Price $10.00 $64 million Pro Forma Equity Value $1,109
n Transaction is expected to generate ~$323 million of cash to the balance sheet (assuming no redemptions) Less: Net Cash Proceeds (323) which will serve as dry powder for fleet expansion and (4) Plus: Existing Net Debt 83 proprietary strategic
investments Bridger Offers an Pro Forma Enterprise Value $869 n Existing Bridger Shareholders are rolling 100% of their (1) Attractive Valuation existing equity without Requiring a (5)(7) (1) Sources Illustrative Pro-Forma Ownership Estimated
Sources PIPE Investment or (2) JCIC Sponsor and Cash in Trust 345 Minimum Cash Independent Directors (3) (1) 6% Threshold Stock Consideration to Existing Bridger Shareholders 725 Existing Bridger Shareholders Total Sources $1,070 (1) 63% Uses
Estimated Uses JCIC Public (1) Stock Consideration to Existing Bridger Shareholders 725 Shareholders (2) 31% (6) Estimated Fees & Expenses 22 Cash to Balance Sheet 323 Total Uses $1,070 Note: Share and $ amounts shown in millions, except for
share price and ownership percentages. (1) Includes ~29.9 million shares in respect of Bridger’s existing Series C shares (assumes conversion of outstanding balance prior to deSPAC of ~$329.1 million at a $11.00 / share conversion price) and
39.6 million shares in respect of the other Bridger existing equityholders. (2) Assumes no redemptions and includes 34.5 million JCIC public shares but excludes the impact of 17.3 million outstanding out-of-the-money JCIC public warrants (with
exercise price of $11.50). (3) Includes ~6.9 million JCIC sponsor shares (less Earnout Shares, as described on page 14) but excludes the impact of 9.4 million outstanding out-of-the-money JCIC sponsor warrants (with exercise price of $11.50). (4)
Includes USDA debt of $36.0 million, plus bank debt of $17.0 million and Gallatin County Municipal Bond debt of $160.0 million ($25.0 million of which is expected to fund the week of August 1, 2022), less balance sheet cash of $130.0 million. (5)
Percentages may not sum to 100% due to rounding. (6) Excludes $12.075 million deferred underwriting fees from JCIC's IPO and other fees payable in the 35 aggregate to UBS and J.P. Morgan. Pursuant to a waiver letter dated July 29, 2022, J.P. Morgan
has waived its pro rata portion of the deferred underwriting fee, subject to satisfaction of the conditions set forth therein. (7) Subject to adjustment if (i) the amount in the JCIC trust account remaining after redemptions is less than $20 million
and (ii) the aggregate transaction expenses of either Bridger or Jack Creek, respectively, exceed $6.5 million. See footnote 3 on Slide 40 for additional information.
Operational Benchmarking CY2023E Revenue Growth CY2023E Defense
Electronics Median = 7% CY2023E Specialty Aviation Median = 11% 42% 12% 11% 11% 11% 8% 8% 5% 6% Bridger’s Projected 5% Revenue Growth and Margin Profile are Favorable Versus Peers CY2023E Adj. EBITDA Margin CY2023E Defense Electronics Median =
22% 60% CY2023E Specialty Aviation Median = 27% 49% 28% 27% 25% 25% 22% 21% 18% 11% Source: CapIQ, Company Management, BAMSEC, public filings as of July 29, 2022. 36
Valuation Benchmarking Enterprise Value / CY2023E Adj. EBITDA CY2023E
Defense Electronics Median = 15.6x CY2023E Specialty Aviation Median = 16.7x 32.8x Bridger’s Valuation is In-Line with 22.3x 18.9x Industry Peers 16.7x 16.0x 15.2x 13.7x 13.5x 11.8x 7.6x Source: CapIQ, Company Management, BAMSEC, public
filings as of July 29, 2022. 37
Appendix
FireTrac Opportunity and Business Model Multi-Billion Dollar Global
Data Opportunity Underserved Market of Addressable Subscribers Business Model & Illustrative Revenue Opportunity n 1/6 of US population is directly impacted by wildfiresn Annual subscription-based revenue model with user-friendly
FireTrac website and mobile app n Current fire data is controlled by wildfire agencies with limited to no access publicly available to those who need it n Subscriptions forecasted to range from $50-$120 annually most per user n
FireTrac is designed to provide data directly to citizens, n Initial rollout is expected to focus on consumers and landowners, insurance companies, utilities, municipal and domestic market, while future versions will target enterprises county
governments and potentially federal agencies and incorporate additional applications Sizing the Market Opportunity n Estimated ~45 million US households in at-risk fire areas ~45 million n Bridger believes that adoption of FireTrac could
translate into (1)(2) Bridger estimated US Households in fire prone areas $375+ million incremental long-term revenue n With adoption from 1 million users, Bridger could still recognize an additional $75 million in incremental annual ~5 million
(2) revenue Illustrative longer-term market for FireTrac ~1 million ~$75 annual Potential near- ~1 million users average sub / ~$75 million term target users user Source: US Forest Service, Washington Post and Bridger management. (1) Calculated as
approximately 5 million potential long-term users multiplied by $75 annual illustrative average subscription fee. 39 (2) FireTrac revenue estimates should be viewed as illustrative and are not currently contemplated in the Company’s revenue
forecast.
Pro-Forma Ownership Impact from Redemptions Illustrative Redemptions 0%
25% 50% 75% Regardless of Final (1) Pro Forma Shares 110.884 102.259 93.634 84.069 Structure, the Transaction Share Price $10.00 $10.00 $10.00 $10.00 Requires No Pro Forma Equity Value $1,109 $1,023 $936 $841 Minimum Cash Less: Net Cash / (Debt)
Position (323) (237) (151) (64) Balance and Bridger Plus: Existing Net Debt 83 83 83 83 is Able to Fund Its Growth without a Pro Forma Enterprise Value $869 $869 $869 $859 Cash Infusion from JCIC (2)(3) Existing Bridger Shareholders 62.7% 67.9%
74.2% 82.6% (2) SPAC Public Shareholders 31.1% 25.3% 18.4% 10.3% (1)(2)(3) SPAC Sponsor and Independent Directors 6.2% 6.8% 7.4% 7.1% Note: Share and $ amounts above shown in millions, except for share price and ownership percentages. (1) For
redemption scenarios that result in $50 million or less cash in trust, 50% of JCIC Sponsor shares shall be forfeited. During a redemption scenario that result in cash in trust greater than $50 million, but less than or equal to $100 million, for
every $1 million over the $50 million cash in trust threshold, 1% of the JCIC Sponsor shares shall be added to the 50% JCIC Sponsor shares. Excludes the Earnout Shares. (2) Percentages may not sum to 100% due to rounding. 40 (3) If the amount
remaining in the JCIC trust account after deducting all amounts payable in respect of JCIC's Class A Ordinary Shares submitted for redemption is less than $20,000,000, (i) the shares to be distributed to JCIC Sponsor will reduced by (a) the excess
of the aggregate legal and advisor fees and expenses incurred by JCIC in connection with the Business Combination, excluding any deferred underwriting fees, over $6,500,000, if any, divided by (b) $10.00, and (ii) the shares to be distributed to the
Bridger equityhholders will be reduced by (x) the excess of the aggregate legal and advisor fees and expenses incurred by Bridger, its subsidiaries and certain of its equityholders in connection with the Business Combination over $6,500,000, if any,
divided by (y) $10.00.
Net Income to Adjusted EBITDA Reconciliation 2021A Net Income to
Adjusted EBITDA Reconciliation Year Ended December 31, 2021 Net Income / (Loss) ($6,540,797) Depreciation and Amortization 6,673,685 Interest Expenses 9,293,298 EBITDA $9,426,816 (1) Loss on Disposals 995,528 (2) Legal Fees 110,000 Adj. EBITDA
$10,532,344 (3) Net Income / (Loss) Margin (17%) (3) Adj. EBITDA Margin % 27% Note: Figures shown above in $, except for margin percentages. (1) Represented loss on the disposal of obsolescence of aging aircraft. 41 (2) Represents one-time costs
associated with legal fees for financing activities. (3) Net loss margin represents net loss divided by total revenue and Adj. EBITDA margin represents Adj. EBITDA divided by total revenue.
Risk Factors (1 of 5) All references to “Bridger,” the
“Company,” “we,” “us” or “our” refer to the business of Bridger Aerospace Group Holdings, LLC and its consolidated subsidiaries. The risks presented below are certain of the general risks related to
our business, industry and ownership structure and are not exhaustive. Additional risks that we currently do not know about or that we currently believe to be immaterial may also impair our business, financial condition or results of operations. The
list below is qualified in its entirety by disclosures contained in future filings by the Company, or by third parties (including Jack Creek Investment Corp. (“Jack Creek”)) with respect to the Company, with the United States Securities
and Exchange Commission (“SEC”). These risks speak only as of the date of this presentation and the Company makes no commitment to update such disclosure. The risks highlighted in future filings with the SEC may differ significantly
from, and will be more extensive than, those presented below. Aviation and Firefighting Risks § Our operation of aircraft involves a degree of inherent risk, and we could suffer losses and adverse publicity stemming from any accident, whether
related to us or not, involving aircraft, helicopters, or commercial drones similar to the assets we use in our operations. § Our business is inherently risky in that it is fighting forest fires which are powerful and unpredictable. § The
unavailability of an aircraft due to loss, mechanical failure, lack of pilots or mechanical personnel, especially one of the Viking Air CL-415EAFs (a Super Scooper), would result in lower operating revenues for us for a period of time that cannot be
determined and would likely be prolonged. § Our pilots and mechanics are required by contract to meet a minimum standard of operational experience by contract. Finding and employing the necessary level of experience and certification has
required us to hire U.S. and Canadian personnel. Inability to source and hire personnel with appropriate skills and experience would inhibit operations. § The development of superior alternative firefighting tactics or technology that do not
rely on our existing and planned capital assets could reduce demand for our services and result in a material reduction in our revenue and results of operations. Operations Risks § We rely on our information technology systems to manage
numerous aspects of our business. A cyber-based attack of these systems could disrupt our ability to deliver services to our customers and could lead to increased overhead costs, decreased sales, and harm to our reputation. § Our service, data
and systems may be critical to operations or involve the storage, processing and transmission of sensitive data, including valuable intellectual property, other proprietary or confidential data, regulated data, and personal information of employees,
and others. Successful breaches, employee malfeasance, or human or technological error could result in, for example, unauthorized access to, disclosure, modification, misuse, loss, or destruction of our or other third-party data or systems; theft of
sensitive, regulated, or confidential data including personal information and intellectual property; the loss of access to critical data or systems; service or system disruptions or denials of service. § Failure to comply with federal, state
and foreign laws and regulations relating to privacy, data protection and consumer protection, or the expansion of current laws and regulations or the enactment of new laws or regulations in these areas, could adversely affect our business and our
financial condition. § Our reputation and ability to do business may be impacted by the improper conduct of our employees, agents or business partners. § Any failure to offer high-quality aerial firefighting services to customers may harm
our relationships with our customers and could adversely affect our reputation, brand, business, financial condition, and results of operations. § Natural disasters, unusual weather conditions, pandemic or epidemic outbreaks, terrorist acts and
political events could disrupt our business. § We are subject to risks associated with climate change, including the potential increased impacts of severe weather events on our operations and infrastructure, and changes in weather patterns may
result in lower demand for our services if such changes result in a reduced risk of wildfires. § Our business is dependent on the availability of aircraft fuel. Continued periods of significant disruption in the supply or cost of aircraft fuel
could have a significant negative impact on consumer demand, our operating results, and liquidity. 42
Risk Factors (2 of 5) Operations Risks (continued) § System
failures, defects, errors, or vulnerabilities in our website, applications, backend systems, or other technology systems or those of third-party technology providers could harm our reputation and brand and adversely impact our business, financial
condition, and results of operations. § If we fail to adequately protect our proprietary intellectual property rights, our competitive position could be impaired and we may lose market share, generate reduced revenue, and/or incur costly
litigation to protect our rights. § In the event that we engage in foreign operations, we will be exposed to risks related to geo-political and economic factors, laws and regulations and our international business would subject us to numerous
political and economic factors, legal requirements, cross-cultural considerations and other risks associated with doing business globally. § Our insurance may become too difficult or expensive for us to obtain or maintain. Increases in
insurance costs or reductions in insurance coverage may materially and adversely impact our results of operations and financial position. § We are highly dependent on our senior management team and other highly skilled personnel with unique
skills. We will need to be able to continue to grow our workforce with highly skilled workers in the future. If we are not successful in attracting or retaining highly qualified personnel, we may not be able to successfully implement our business
strategy. § Our business may be adversely affected by labor and union activities. § Past performance by our management team or their respective affiliates may not be indicative of future performance of an investment in us. § We have
entered into ground leases with terms of [twenty (20)] years with the Gallatin Airport Authority for each of our hangars. If the Airport Authority declines to renew any of our ground leases, our operations and results of operations could be
materially and adversely impacted. § Our lack of diversification with respect to the aircrafts we use may subject us to negative economic, competitive and regulatory developments that disproportionately impact our aviation assets as compared to
other fire suppression aircraft or alternative fire suppression services, which could adversely affect our ability to market and sell our services and our reputation. § Any delays in the development, design and engineering of our products and
services may adversely impact our business, financial condition and results of operations. Seasonality Risks § There is a seasonal fluctuation in the need to fight forest fires based upon location. A significant portion of our total revenue
currently occurs during the second and third quarters of the year due to the North American fire season, and the intensity of the fire season varies from year to year. As a result, our operating results may fluctuate significantly from quarter to
quarter and from year to year § Extreme weather, drought and shifting climate patterns have intensified the challenges associated with many of the risks facing the Company, particularly wildfire management. § Currently, the substantial
majority of our revenue is generated in the states of the United States located West of the Mississippi River, and if the weather patterns result in fewer wildfires in this region, demand for “flight hour” services would decrease and
potentially result in a material decrease in revenue or net income. Sales and Customer Risks § Our long-term success and ability to significantly grow our revenue will depend, in part, on our ability to establish and expand into international
markets and/or expand market segments. § The aerial firefighting industry is expected to grow in the near future and is volatile, and if it does not develop, if it develops slower than we expect, if it develops in a manner that does not require
use of our services, if it encounters negative publicity or if our solution does not drive commercial or governmental engagement, the growth of our business will be harmed. § In the future, there may be other businesses who attempt to provide
the services that we provide, or our main private competitor could attempt to increase operations. In the future, federal, state, and local governments and foreign governments may also decide to directly provide such services. § If we
experience harm to our reputation and brand, our business, financial condition and results of operations could be adversely affected. § We have government customers, which subjects us to risks including early termination, audits,
investigations, sanctions and penalties. We are also subject to regulations applicable to government contractors which increase our operating costs and if we fail to comply, could result in the termination of our contracts with government entities.
43
Risk Factors (3 of 5) Sales and Customer Risks (continued) § The
U.S. government’s budget deficit and the national debt, as well as any inability of the U.S. government to complete its budget process for any government fiscal year and consequently having to shut down or operate on funding levels equivalent
to its prior fiscal year pursuant to a “continuing resolution,” could have an adverse impact on our business, financial condition, results of operations and cash flows. § We depend significantly on U.S. government contracts, which
often are only partially funded, subject to immediate termination, and heavily regulated and audited. The termination or failure to fund, or negative audit findings for, one or more of these contracts could have an adverse impact on our business,
financial condition, results of operations and cash flows. § Any future international expansion strategy will subject us to additional costs and risks, and our plans may not be successful. § We may be blocked from or limited in providing
or offering our services in certain jurisdictions and may be required to modify our business model in those jurisdictions as a result. § We may enter into firefighting contracts in the future with foreign governments, which may result in
increased compliance and oversight risks and expenses. § We may be unable to manage our future growth effectively, which could make it difficult to execute our business strategy. § We rely on a few large customers for a majority of our
business, and the loss of any of these customers, significant changes in the prices, marketing allowances or other important terms provided to any of these customers or adverse developments with respect to the financial condition of these customers
could materially reduce our net income and operating results. § Our cash flow and profitability could be reduced if expenditures are incurred prior to the final receipt of a contract. § If we are not able to successfully enter into new
markets and offer new services and enhance our existing offerings, our business, financial condition and results of operations could be adversely affected. Supplier Risks § There is a limited supply of new CL-415EAF aircraft to purchase, and an
inability to purchase additional CL-415EAF aircraft could impede our ability to increase our revenue and net income. § We currently rely and will continue to rely on third-party partners to provide and store the parts and components required to
service and maintain our aircrafts, and to supply critical components and systems, which exposes us to a number of risks and uncertainties outside our control. Disputes with our suppliers or the inability of our suppliers to perform, or our key
suppliers to timely deliver our components, parts or services, could cause our services to be provided in an untimely or unsatisfactory manner. Legal and Regulatory Risks § Our business is subject to a wide variety of additional extensive and
evolving government laws and regulations. Failure to comply with such laws and regulations could have a material adverse effect on our business. § Our operations are subject to various federal, state and local laws and regulations governing
health and the environment. § Certain local land use policies and forestry management practices could be restricted to reduce the construction and development of residential and commercial projects in high-risk fire areas, which could lead to a
reduction in demand for our services. § Certain or future state and local water use and access policies could restrict our ability to access the bodies of water necessary to combat wildfires with our existing fire suppression aircraft. In the
future, we may be unable to secure exemptions to these policies, and demand for our services could decrease. Financial and Capital Strategy Risks § We may in the future invest significant resources in developing new offerings and exploring the
application of our technologies for other uses and those opportunities may never materialize. § We may require substantial additional funding to finance our operations and growth strategy, but adequate additional financing may not be available
when we need it, on acceptable terms, or at all. § Any acquisitions, partnerships or joint ventures that we enter into could disrupt our operations and have a material adverse effect on our business, financial condition and results of
operations. As part of growing our business, we have and may make acquisitions. If we fail to successfully select, execute or integrate our acquisitions, then our business, results of operations and financial condition could be materially adversely
affected, and our stock price could decline. § Our systems, aircrafts, technologies and services and related equipment may have shorter useful lives than we anticipate. 44
Risk Factors (4 of 5) Financial and Capital Strategy Risks (continued)
§ We have a substantial amount of debt and servicing future interests or principal payments may impair our ability to operate our business or require us to change our business strategy to accommodate the repayment of our debt. Our ability to
operate our business is limited by certain agreements governing our debt, including restrictions on the use of the loan proceeds, operational covenants, and restrictions on additional indebtedness. § We do not expect to declare any dividends in
the foreseeable future. Early Stage Company Risks § We have incurred significant losses since inception, and we may not be able to achieve, maintain or increase profitability or positive cash flow. § The requirements of being a public
company may strain our resources, divert our management’s attention and affect our ability to attract and retain additional executive management and qualified board members. § Our management team has limited experience managing a public
company. § If we do not develop and implement all required accounting practices and policies, we may be unable to provide the financial information required of a U.S. publicly traded company in a timely and reliable manner. §
Investors’ expectations of our performance relating to environmental, social and governance (“ESG”) factors and compliance with proposed SEC rules relating to climate change disclosures may impose additional costs and expose us to
new risks. § Pursuant to the Jumpstart Our Business Startups Act of 2012 (the “JOBS Act”), our independent registered public accounting firm will not be required to attest to the effectiveness of our internal control over financial
reporting pursuant to Section 404 of the Sarbanes-Oxley Act for so long as we are an “emerging growth company.” § We have identified material weaknesses in our internal control over financial reporting. If we are unable to maintain
an effective system of internal control over financial reporting, we may not be able to accurately report our financial results in a timely manner, which may adversely affect investor confidence in us and materially and adversely affect our business
and operating results. Equity Risks § The market for New Bridger Common Stock may not be sustained. § The price of New Bridger Common Stock may fluctuate substantially. § New Bridger Common Stock is subject to restrictions on
ownership by non-U.S. citizens, which could require divestiture by non-U.S. citizen stockholders and could have a negative impact on the transferability of our common stock, its liquidity and market value, and on a change of control of us. § We
may issue additional shares of common stock or other equity securities, which would dilute your ownership interest in us and may depress the market price of our common stock. § We are an “emerging growth company” and a
“smaller reporting company” within the meaning of the Securities Act, and if we take advantage of certain exemptions from disclosure requirements available to “emerging growth companies” or “smaller reporting
companies,” this could make our securities less attractive to investors and may make it more difficult to compare our performance with other public companies. § Provisions in our charter, Stockholder Agreement, and Delaware law may
inhibit a takeover of us, which could limit the price investors might be willing to pay in the future for our common stock and could entrench management. § If securities or industry analysts do not maintain coverage of us, if they change their
recommendations regarding New Bridger Common Stock, or if our operating results do not meet their expectations, the New Bridger Common Stock price and trading volume could decline. § There can be no assurance that we will be able to comply with
the continued listing standards of the NASDAQ. The NASDAQ may delist our securities from trading on its exchange, which could limit investors’ ability to make transactions in our securities and subject us to additional trading restrictions.
45
Risk Factors (5 of 5) Transaction Risks § The process of taking a
company public by means of a business combination with a special purpose acquisition company (“SPAC”) is different from taking a company public through an underwritten offering and may create risks for our unaffiliated investors. §
The pro forma consolidated financial information may not be an indication of Bridger’s financial condition or results of operations following the business combination, and accordingly, investors have limited financial information on which to
evaluate Bridger and their investment decision. § During the pre-closing period, Jack Creek and Bridger are prohibited from entering into certain transactions that might otherwise be beneficial to Jack Creek, Bridger or their respective
shareholders. § Uncertainties about the business combination during the pre-closing period may cause a loss of key management personnel and other key employees. General Risk Factors § The COVID-19 pandemic or other future global health
emergencies may materially and adversely impact our business, operating results, financial condition and liquidity. If the impacts from the COVID-19 pandemic extend beyond our assumed timelines or new global health emergencies emerge, our actual
results may vary significantly from our expectations. § Net earnings and net assets could be materially affected by an impairment of goodwill. § Changes in tax laws or regulations may increase tax uncertainty and adversely affect results
of our operations and our effective tax rate. § Certain U.S. state tax authorities may assert that we have a state nexus and seek to impose state and local income taxes which could harm our results of operations. § Our amended and restated
certificate of incorporation requires, to the fullest extent permitted by law, that derivative actions brought in our name, actions against our directors, officers, other employees or stockholders for breach of fiduciary duty and other similar
actions may be brought only in the Court of Chancery in the State of Delaware, which may have the effect of discouraging lawsuits against our directors, officers, other employees or stockholders. § We may be required to take write-downs or
write-offs, restructuring and impairment or other charges that could have a significant negative effect on our financial condition, results of operations and the price of our securities, which could cause you to lose some or all of your investment.
46
Exhibit 99.3
SPAC Message to Team
Team Bridger,
Thank you for your hard work so far this fire season. Your efforts to support the Elmo fire are nothing short of Heroic and are inspiring to me and the entire
community. I am humbled to see what you have done and immensely proud of our brand. Your service to the nation and to the company this summer and previous years is recognized and appreciated by all who know Bridger Aerospace. Whether you have been
with our company for 7 weeks or 7 years, you have seen us grow and evolve quickly since you have joined the family. Although we are far from perfect, I am incredibly proud of what we have achieved in a relatively short period and grateful to the
tremendous team that we have. Our success is 100% due to you and your efforts.
It is because of this team dynamic that I am writing to you this morning.
You may read some public announcements in the coming days that announce an important corporate evolution for the Bridger Aerospace family. Many of you have probably looked around the campus these past few years and wondered how in the hell do
we pay for all this stuff??. If you are one of those who asked this question, you are right; EVERYTHING we do is expensive. And when you are a young fast growing company, money itself can be very expensive.
Over the past several years my brother and I, as well as the rest of the Bridger leadership team, have worked tirelessly to continuously finance the growth of
our enterprise through various financial instruments from private debt, public debt, bank financing, private equity, personal loans etc. In short, we have successfully bootstrapped the company one step at a time to get to where we are.
Now that Bridger has a successful mix of assets that are generating revenue on various contracts and our business model is matured and proven, we are taking
the next step in our companys history. We will be taking Bridger Aerospace public via a Special Purpose Acquisition Corporation (SPAC) transaction. What this means is we will merge Bridger Aerospace with an existing Public Shell company, named
Jack Creek Investment Company, so that later in 2022, Bridger will have its shares traded on the Nasdaq Stock Market. The Team at Jack Creek is a Montana based group of financial professionals who have impressive careers building companies in
their own right. They have long admired Bridger are eager to help us succeed.
Why are we doing this? Two reasons.
|
1. |
Funding Growth. Growth capital is far less expensive when we are a public company, and we intend to
continue to grow Bridger Aerospace in the years to come. Wildfires are a pernicious threat to the globe and we have shown the world that we have the grit and ingenuity to do it better than anyone else. The world needs more of Bridger and we intend
to give it to them. |
|
2. |
Rewarding our team. Employees can directly participate in the equity of the company through stock
options and share grants which enable our entire team to enjoy the economic success of our enterprise. Although we try to be as generous as possible with salaries and bonuses, rewarding our hardworking team with equity in the company is the best way
to recognize your hard work and contributions. This transaction will give us an avenue to do this for Team Bridger. |
As you know, my priority first and foremost is always to make the best decisions for Bridger. Following
careful consideration and extensive discussions, we determined that going public is the best way to equip our company with the right resources to grow and succeed. We are making this decision because we know we have the right foundation to take this
next step in our growth and partnering with Jack Creek will provide us with expertise and financial backing to continue expanding our business.
We expect
that all of you in addition to our supportive customer base will benefit from this transaction. Rest assured, our core mission of Saving Lives which has been the backbone of our success so far will remain the same going
forward.
Bridger already has a track record of strong financial performance and, as a public company, we expect to build on this strong performance from
day one and realize significant growth opportunities over the upcoming years. Becoming a public company will enable us to access more resources and additional expertise to accelerate our growth, expand geographically and continue to invest in the
innovative technologies we need to meet the growing demand for our critical services. Going forward, we will be even better positioned to continue serving our communities and even more regions around the world, and to innovate to meet the new,
emerging challenges in our environment.
What does this mean for Bridger?
It means that our financial performance will be public knowledge and that the compliance requirements for our company will be more burdensome. It will NOT
affect our Mission, our Culture or how we do business. Your leadership team will remain largely the same with the addition of an additional handful of fantastic board members who will help to guide us through our next phase of growth.
We will be hosting an all hands zoom call next week to answer any questions you may have directly.
I hope you are excited about this new chapter for Bridger it will only increase our ability to reward our team for the important work they do to
protect our nation and our communities.
Please continue to focus on your mission and duties this summer. Our home state of Montana needs you more than
ever today.
Good luck and take care of each other in the field.
With deep respect and gratitude,
Tim
No Offer or Solicitation
This communication does not constitute an offer to sell, or a solicitation of an offer to buy, or a recommendation to purchase, any securities in any
jurisdiction, or the solicitation of any vote, consent or approval in any jurisdiction in connection with the potential business combination between Bridger
Aerospace Group Holdings, LLC (Bridger) and Jack Creek Investment Corp. (Jack Creek) and related transactions (the Potential Business Combination), nor shall
there be any sale, issuance or transfer of any securities in any jurisdiction where, or to any person to whom, such offer, solicitation or sale may be unlawful under the laws of such jurisdiction. This communication does not constitute either advice
or a recommendation regarding any securities. No offering of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended, or an exemption therefrom.
Forward Looking Statements
Certain statements included
in this communication are not historical facts but are forward-looking statements, including for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally
are accompanied by words such as believe, may, will, estimate, continue, anticipate, intend, expect, should, would,
plan, project, forecast, predict, potential, seem, seek, future, outlook, target, and similar expressions that predict or
indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited to,
(1) references with respect to the anticipated benefits of the Potential Business Combination and anticipated closing timing; (2) the sources and uses of cash of the Potential Business Combination; (3) the anticipated capitalization
and enterprise value of the combined company following the consummation of the Potential Business Combination; (4) current and future potential commercial and customer relationships; and (5) anticipated investments in additional aircraft,
capital resource, and research and development and the effect of these investments. These statements are based on various assumptions, whether or not identified in this communication, and on the current expectations of Jack Creeks and
Bridgers management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an
assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of
Bridger. These forward-looking statements are subject to a number of risks and uncertainties, including: changes in domestic and foreign business, market, financial, political and legal conditions; the inability of the parties to successfully or
timely consummate the Potential Business Combination, including the risk that any required stockholder or regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company
or the expected benefits of the Potential Business Combination is not obtained; failure to realize the anticipated benefits of the Potential Business Combination; risks relating to the uncertainty of the projected financial information with respect
to Bridger; Bridgers ability to successfully and timely develop, sell and expand its technology and products, and otherwise implement its growth strategy; risks relating to Bridgers operations and business, including information
technology and cybersecurity risks, loss of requisite licenses, flight safety risks, loss of key customers and deterioration in relationships between Bridger and its employees; risks related to increased competition; risks relating to potential
disruption of current plans, operations and infrastructure of Bridger as a result of the announcement and consummation of the Potential Business Combination; risks that Bridger is unable to secure or protect its intellectual property; risks that the
post-combination company experiences difficulties managing its growth and
expanding operations; the ability to compete with existing or new companies that could cause downward pressure on prices, fewer customer orders, reduced margins, the inability to take advantage
of new business opportunities, and the loss of market share; the amount of redemption requests made by Jack Creeks shareholders; the impact of the COVID-19 pandemic; the ability to successfully select,
execute or integrate future acquisitions into the business, which could result in material adverse effects to operations and financial conditions; and those factors discussed in the sections entitled Risk Factors and Special Note
Regarding Forward-Looking Statements in JCICs Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, JCICs Annual Report on Form 10-K
for the year ended December 31, 2021, and in those documents that JCIC or Wildfire New PubCo, Inc., a wholly owned subsidiary of Jack Creek (New PubCo) has filed, or will file, with the U.S. Securities and Exchange Commission (the
SEC). If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. The risks and uncertainties above are not exhaustive, and
there may be additional risks that neither Jack Creek nor Bridger presently know or that Jack Creek and Bridger currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements.
In addition, forward looking statements reflect Jack Creeks and Bridgers expectations, plans or forecasts of future events and views as of the date of this communication. Jack Creek and Bridger anticipate that subsequent events and
developments will cause Jack Creeks and Bridgers assessments to change. However, while Jack Creek and Bridger may elect to update these forward-looking statements at some point in the future, Jack Creek and Bridger specifically disclaim
any obligation to do so. These forward-looking statements should not be relied upon as representing Jack Creeks and Bridgers assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not
be placed upon the forward-looking statements.
Important Information for Shareholders and Investors
The Potential Business Combination will be submitted to shareholders of Jack Creek for their consideration and approval at a special meeting of shareholders.
Jack Creek and Bridger will prepare a registration statement on Form S-4 (the Registration Statement) to be filed with the SEC by New PubCo, which will include preliminary and definitive proxy
statements to be distributed to Jack Creeks shareholders in connection with Jack Creeks solicitation for proxies for the vote by Jack Creeks shareholders in connection with the Potential Business Combination and other matters as
described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Jack Creeks shareholders and certain of Bridgers equityholders in connection with the completion of the Potential
Business Combination. After the Registration Statement has been filed and declared effective, Jack Creek will mail a definitive proxy statement and other relevant documents to its shareholders as of the record date established for voting on the
Potential Business Combination. Jack Creeks shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto and, once available, the definitive proxy
statement/prospectus, in connection with Jack Creeks solicitation of proxies for its special meeting of shareholders to be held to approve, among other things, the Potential Business Combination, because these documents will contain important
information about Jack Creek, Bridger and the Potential Business Combination. Shareholders may also obtain a copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Potential
Business Combination and other documents filed with the SEC by Jack Creek, without charge, at the
SECs website located at www.sec.gov. Copies of these filings may be obtained free of charge on Jack Creeks Investor Relations website at
https://www.jackcreekinvestmentcorp.com/ or by directing a request to KSH Capital LP, Attention: Lauren Ores, 386 Park Avenue South, Floor 20, New York, NY 10016.
Participants in the Solicitation
Jack Creek and Bridger
and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of Jack Creeks shareholders in connection with the Potential Business Combination. Investors and security
holders may obtain more detailed information regarding Jack Creeks directors and executive officers in Jack Creeks filings with the SEC, including Jack Creeks Annual Report on Form 10-K filed
with the SEC on March 21, 2022. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to Jack Creeks shareholders in connection with the Potential Business Combination, including
a description of their direct and indirect interests, which may, in some cases, be different than those of Jack Creeks shareholders generally, will be set forth in the Registration Statement. Shareholders, potential investors and other
interested persons should read the Registration Statement carefully when it becomes available before making any voting or investment decisions.
This
communication is not a substitute for the Registration Statement or for any other document that Jack Creek or New PubCo may file with the SEC in connection with the Potential Business Combination. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE
DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders may obtain free copies of other documents filed with the SEC by Jack Creek and
New PubCo through the website maintained by the SEC at http://www.sec.gov.
Bridger Team,
Im writing to share exciting news about the future of our company. Today, we announced that Bridger Aerospace has reached an agreement to go public
through a business combination with Jack Creek Investment Corp., a special purpose acquisition company (SPAC). For those of you who may not know, SPACs raise money to invest in financially attractive and innovative companies like Bridger and take
them public without a traditional initial public offering. Once the transaction is complete, which we expect will occur in the fourth quarter of 2022, we expect to list on the NASDAQ Capital Market under the ticker symbol BAER.
While we are already in a strong financial position, becoming a public company will enable us to access more resources and additional expertise to accelerate
our growth, expand geographically, and continue to invest in the innovative technology solutions we need to meet the growing demand for our aerial firefighting services.
As always, my top priority is to make the best decisions for Bridger and our people. Jack Creeks team has a history of building high-performing,
publicly traded and private businesses across various sectors, so we will benefit immensely from their expertise as we continue growing as a public company. I have developed a strong working relationship with the Jack Creek team over the last
several months, and know they deeply admire our teams extensive military experience, complex operational expertise, and emphasis on safety. I am confident they are the right partner to help us continue the important, lifesaving work we do
every day.
While todays news begins a new era for Bridger, please know that you should see no impact to your day-to-day responsibilities or reporting structures. Our entire leadership team is remaining at Bridger, and our partnership with Jack Creek will only enhance our commitment to keeping people and their
communities safe from wildfires. We will also remain headquartered in the Bozeman area and continue to serve and protect global communities.
For more
information, I encourage you to read the official press release
(https://www.globenewswire.com/news-release/2022/08/04/2492184/0/en/Bridger-Aerospace-a-Leading-Provider-of-Aerial-Firefighting-Services-to-Become-a-Public-Company-Through-Business-Combination-with-Jack-Creek-Investment-Corp.html) issued today. We
will also hold an all hands meeting next week to discuss this in more detail and answer any questions you may have.
We are notifying our customers and
community partners to ensure they are aware of this exciting news and know who to contact with any questions. If you receive any inquiries from our customers or members of the community, please refer to the talking points below to guide your
conversations. For additional details, please direct them to Ceresa Way at info@bridgeraerospace.com.
You may also see media coverage of this
news; as is our policy, if you are contacted by a reporter, please refrain from commenting and direct those inquiries to Jeff Cavarra at info@bridgeraerospace.com.
This transaction is a testament to everyones hard work and enduring commitment to our mission of saving lives, preserving our environment, and
protecting people and communities. Thank you for all that you do.
I hope you share in my excitement about this next stage for Bridger I strongly
believe that the best is yet to come.
Tim Sheehy
Founder and CEO
##
Talking Points for Customers and Community Members
NOT for use with the media
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Bridger has reached an agreement to go public through a business combination with Jack Creek Investment Corp., a
special purpose acquisition company (SPAC). |
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SPACs raise money to invest in financially attractive and innovative companies like Bridger and take them public
without a traditional initial public offering. |
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Once the transaction is complete, which we expect will occur in the fourth quarter of 2022, Bridger expects to
list on the NASDAQ Capital Market under the ticker symbol BAER. |
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Importantly, everything will remain business as usual for Bridger. |
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We remain focused on carrying out our mission to save lives, preserve the environment, and protect people and
communities as we progress through this transaction and beyond. |
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We will continue to be headquartered in the Bozeman area and remain committed to serving and protecting global
communities through our comprehensive aerial firefighting services. |
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Becoming a public company will enable us to access more resources and additional expertise to accelerate our
growth, expand geographically, and continue to invest in innovative technology solutions and our fleet of aircraft. |
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For more information on the announcement, I encourage you to read the official press release issued today/August
4 or refer to the letter you should have received from us on the news. |
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Should you have any further questions, please reach out directly to me or Ceresa Way at
info@bridgeraerospace.com. |
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Thank you for your support. |
No Offer or Solicitation
This communication does not
constitute an offer to sell, or a solicitation of an offer to buy, or a recommendation to purchase, any securities in any jurisdiction, or the solicitation of any vote, consent or approval in any jurisdiction in connection with the potential
business combination between Bridger Aerospace Group Holdings, LLC (Bridger) and Jack Creek Investment Corp. (Jack Creek) and related transactions (the Potential Business Combination), nor shall there be any sale,
issuance or transfer of any securities in any jurisdiction where, or to any person to whom, such offer, solicitation or sale may be
unlawful under the laws of such jurisdiction. This communication does not constitute either advice or a recommendation regarding any securities. No offering of securities shall be made except by
means of a prospectus meeting the requirements of the Securities Act of 1933, as amended, or an exemption therefrom.
Forward Looking Statements
Certain statements included in this communication are not historical facts but are forward-looking statements, including for purposes of the safe
harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally are accompanied by words such as believe, may, will, estimate,
continue, anticipate, intend, expect, should, would, plan, project, forecast, predict, potential, seem,
seek, future, outlook, target, and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean
that a statement is not forward-looking. These forward-looking statements include, but are not limited to, (1) references with respect to the anticipated benefits of the Potential Business Combination and anticipated closing timing;
(2) the sources and uses of cash of the Potential Business Combination; (3) the anticipated capitalization and enterprise value of the combined company following the consummation of the Potential Business Combination; (4) current and
future potential commercial and customer relationships; and (5) anticipated investments in additional aircraft, capital resource, and research and development and the effect of these investments. These statements are based on various
assumptions, whether or not identified in this communication, and on the current expectations of Jack Creeks and Bridgers management and are not predictions of actual performance. These forward-looking statements are provided for
illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or
impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Bridger. These forward-looking statements are subject to a number of risks and uncertainties, including: changes in domestic and
foreign business, market, financial, political and legal conditions; the inability of the parties to successfully or timely consummate the Potential Business Combination, including the risk that any required stockholder or regulatory approvals are
not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the Potential Business Combination is not obtained; failure to realize the anticipated benefits of the
Potential Business Combination; risks relating to the uncertainty of the projected financial information with respect to Bridger; Bridgers ability to successfully and timely develop, sell and expand its technology and products, and otherwise
implement its growth strategy; risks relating to Bridgers operations and business, including information technology and cybersecurity risks, loss of requisite licenses, flight safety risks, loss of key customers and deterioration in
relationships between Bridger and its employees; risks related to increased competition; risks relating to potential disruption of current plans, operations and infrastructure of Bridger as a result of the announcement and consummation of the
Potential Business Combination; risks that Bridger is unable to secure or protect its intellectual property; risks that the post-combination company experiences difficulties managing its growth and expanding operations; the ability to compete with
existing or new companies that could cause downward pressure on prices, fewer customer orders, reduced margins, the inability to take advantage of new business opportunities, and the loss of market share; the amount of redemption requests made
by Jack Creeks shareholders; the impact of the COVID-19 pandemic; the ability to successfully select, execute or integrate future acquisitions into
the business, which could result in material adverse effects to operations and financial conditions; and those factors discussed in the sections entitled Risk Factors and Special Note Regarding Forward-Looking Statements in
JCICs Quarterly Report on Form 10-Q for the quarter ended March 31, 2022, JCICs Annual Report on Form 10-K for the year ended December 31, 2021,
and in those documents that JCIC or Wildfire New PubCo, Inc., a wholly owned subsidiary of Jack Creek (New PubCo) has filed, or will file, with the U.S. Securities and Exchange Commission (the SEC). If any of these risks
materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. The risks and uncertainties above are not exhaustive, and there may be additional risks that neither
Jack Creek nor Bridger presently know or that Jack Creek and Bridger currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward looking statements
reflect Jack Creeks and Bridgers expectations, plans or forecasts of future events and views as of the date of this communication. Jack Creek and Bridger anticipate that subsequent events and developments will cause Jack Creeks and
Bridgers assessments to change. However, while Jack Creek and Bridger may elect to update these forward-looking statements at some point in the future, Jack Creek and Bridger specifically disclaim any obligation to do so. These forward-looking
statements should not be relied upon as representing Jack Creeks and Bridgers assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Important Information for Shareholders and Investors
The Potential Business Combination will be submitted to shareholders of Jack Creek for their consideration and approval at a special meeting of shareholders.
Jack Creek and Bridger will prepare a registration statement on Form S-4 (the Registration Statement) to be filed with the SEC by New PubCo, which will include preliminary and definitive proxy
statements to be distributed to Jack Creeks shareholders in connection with Jack Creeks solicitation for proxies for the vote by Jack Creeks shareholders in connection with the Potential Business Combination and other matters as
described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to Jack Creeks shareholders and certain of Bridgers equityholders in connection with the completion of the Potential
Business Combination. After the Registration Statement has been filed and declared effective, Jack Creek will mail a definitive proxy statement and other relevant documents to its shareholders as of the record date established for voting on the
Potential Business Combination. Jack Creeks shareholders and other interested persons are advised to read, once available, the preliminary proxy statement/prospectus and any amendments thereto and, once available, the definitive proxy
statement/prospectus, in connection with Jack Creeks solicitation of proxies for its special meeting of shareholders to be held to approve, among other things, the Potential Business Combination, because these documents will contain important
information about Jack Creek, Bridger and the Potential Business Combination. Shareholders may also obtain a copy of the preliminary or definitive proxy statement, once available, as well as other documents filed with the SEC regarding the Potential
Business Combination and other documents filed with the SEC by Jack Creek, without charge, at the SECs website located at www.sec.gov. Copies of these filings may be obtained free of charge on Jack Creeks Investor Relations
website at https://www.jackcreekinvestmentcorp.com/ or by directing a request to KSH Capital LP, Attention: Lauren Ores, 386 Park Avenue South, Floor 20, New York, NY 10016.
Participants in the Solicitation
Jack Creek and Bridger and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies
of Jack Creeks shareholders in connection with the Potential Business Combination. Investors and security holders may obtain more detailed information regarding Jack Creeks directors and executive officers in Jack Creeks filings
with the SEC, including Jack Creeks Annual Report on Form 10-K filed with the SEC on March 21, 2022. Information regarding the persons who may, under SEC rules, be deemed participants in the
solicitation of proxies to Jack Creeks shareholders in connection with the Potential Business Combination, including a description of their direct and indirect interests, which may, in some cases, be different than those of Jack Creeks
shareholders generally, will be set forth in the Registration Statement. Shareholders, potential investors and other interested persons should read the Registration Statement carefully when it becomes available before making any voting or investment
decisions.
This communication is not a substitute for the Registration Statement or for any other document that Jack Creek or New PubCo may file with the
SEC in connection with the Potential Business Combination. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DOCUMENTS FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION.
Investors and security holders may obtain free copies of other documents filed with the SEC by Jack Creek and New PubCo through the website maintained by the SEC at http://www.sec.gov.
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