Exhibit 1
Execution Version
EXCHANGE AGREEMENT
This Exchange Agreement (this “Agreement”) is made and entered into on November 6, 2025, by and among NuScale Power Corporation, a Delaware corporation (“NuScale Corp”), NuScale Power, LLC, an Oregon limited liability company (“NuScale LLC,” and collectively with NuScale Corp, “NuScale”), Fluor Corporation, a Delaware corporation (“Fluor Corp”), and Fluor Enterprises, Inc., a California corporation and a wholly-owned subsidiary of Fluor Corp (“Fluor Enterprises” and, collectively with Fluor Corp, “Fluor,” and collectively with NuScale, the “Parties”).
RECITALS
WHEREAS, pursuant to the Agreement and Plan of Merger, dated December 13, 2021 (as amended, the “Merger Agreement”), by and among Spring Valley Acquisition Corp. (the predecessor to NuScale Corp), Spring Valley Merger Sub, LLC, an Oregon limited liability company, and NuScale LLC, on May 2, 2022, NuScale Corp issued to Fluor Enterprises 125,936,472 shares of Class B common stock, par value $0.0001 per share, of NuScale Corp (“Class B Common Stock”) and NuScale LLC issued to Fluor Enterprises the same number of Class B common units of NuScale LLC (“Class B Units”) in exchange for pre-existing equity which Fluor Enterprises held in NuScale LLC; and
WHEREAS, pursuant to the Sixth Amended and Restated Limited Liability Company Agreement of NuScale LLC (the “NuScale LLC Agreement”), each Class B Unit (together with the cancellation of a share of Class B Common Stock) is exchangeable for one share of Class A common stock, par value $0.0001 per share, of NuScale Corp (“Class A Common Stock”) (any such exchange made pursuant to this Agreement is referred to herein as an “Exchange”).
NOW, THEREFORE, in consideration of the mutual representations, covenants and agreements contained herein, and certain other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
1.Exchange.
a.No later than November 8, 2025 (the “Exchange Date”), NuScale hereby agrees that it shall take all action required to exchange all 110,936,472 of the Class B Units (together with the cancellation of the same number of shares of Class B Common Stock) currently owned by Fluor and its controlled Affiliates (collectively, the “Fluor Parties”) into 110,936,472 shares of Class A Common Stock (the “Exchanged Shares”); provided that Fluor or a Fluor Party shall enter into one or more Structured Sale Transactions (as defined below) after the execution of this Agreement having the terms described in Section 3(a)(ii) with respect to all of the Exchanged Shares. The Exchange of the Class B Units into the Exchanged Shares shall be treated as an “Elective Exchange” and made pursuant to Article 11 of the NuScale LLC Agreement (capitalized undefined terms used in this Section 1 shall have the meaning ascribed to them in the NuScale LLC Agreement).
b.This Agreement shall constitute Fluor Enterprises’ “Elective Exchange Notice” and NuScale’s acceptance thereof and supersedes any prior “Elective Exchange Notice” that Fluor Enterprises has submitted.
c.The “Exchange Consideration” shall be in the form of “Stock Consideration.”
d.Delivery of and settlement for the Exchanged Shares shall occur on the Exchange Date, and NuScale shall cause the delivery of all of the Exchanged Shares to be made to Fluor or its applicable controlled Affiliate through the Direct Registration System (“DRS”) of The Depository Trust Company (“DTC”). For the avoidance of doubt, the Exchanged Shares shall be issued without any restrictive legend or other notation restricting transfer under the Securities Act of 1933, as amended, or otherwise.
2.Trading, Sale and Issuance Limitations.
a.Fluor Limitations.
i.Subject to the exceptions described in Section 3, Fluor hereby agrees that, from (and including) the date of this Agreement through (and including) June 1, 2026, Fluor shall not, and shall cause each of its controlled Affiliates not to, Transfer a number of Exchanged Shares in excess of:
1.6% of ADTV on any Blackout Date; and
2.3% of ADTV on any Non-Blackout Date.
ii.NuScale hereby acknowledges and agrees that no Fluor Party shall be subject to any trading or other Transfer limitation with respect to any equity securities of NuScale at any time after June 1, 2026.
iii.Fluor shall not, and shall cause each of its controlled Affiliates not to, Transfer any Class A Common Stock while any Structured Sale Transaction described in Section 3(a)(ii) remains in effect (other than pursuant to the terms of such Structured Sale Transaction).
iv.Except as expressly set forth in this Section 2(a), this Agreement does not impose any limitations on any Fluor Party’s ability to Transfer any shares of Class A Common Stock.
v.Following the commencement of any Structured Sale Transaction (as defined below), Fluor shall provide to NuScale, on a bi-weekly basis, a report setting forth the information reported to Fluor by the applicable Dealer with respect to the Dealer’s good faith estimate of the number of shares of Class A Common Stock then attributable to the Structured Sale Transaction (not including any sales or purchases related to the Dealer’s dynamic hedging), which number may be based on Dealer’s modeling for the related transaction, during the trailing two-week period. For the
avoidance of doubt, such reports shall not include, and no Fluor Party shall have any obligation to obtain or disclose, any information regarding any Dealer’s hedging or other risk-management activities undertaken in connection with any Structured Sale Transaction.
vi.Prior to the execution of this Agreement, Fluor has provided to NuScale a substantially complete form of the documentation for the first Structured Sale Transaction that a Fluor Party will enter into after the date hereof (the “Initial Structured Sale Transaction” and such documentation form, the “Structured Sale Agreement Form”). If Fluor or any Fluor Party enters into a Structured Sale Transaction, Fluor shall, or shall cause such Fluor Party, to enter into and effect the Initial Structured Sale Transaction and use reasonable best efforts to effect any subsequent Structured Sale Transaction on terms that are substantially similar to the Structured Sale Agreement Form; provided that (1) Fluor shall be permitted to make customary or immaterial changes, updates to reflect then-current market conventions or dealer requirements, changes necessary to comply with applicable law, and changes that do not otherwise impact the substance of the transactions contemplated by the Structured Sale Agreement Form; and (2) for the avoidance of doubt, any Structured Sale Transaction shall comply with the requirements and restrictions set forth in Section 3(a)(ii) and such terms or restrictions shall not change or be varied; provided further that Fluor shall not be required to enter into any Structured Sale Transaction, or to execute or perform under the Structured Sale Agreement Form, at any time that any act or omission by NuScale that prevents Fluor from entering into such agreement or consummating the sales contemplated thereby, in which case, during such time, notwithstanding anything else herein Fluor shall be entitled to Transfer Class A Common Stock in accordance with, and subject to the restrictions set forth in, Section 2(a) hereof until such time as Fluor is able to enter into such agreement or consummate sales contemplated thereby.
vii.Upon Fluor’s request, NuScale shall enter into a customary issuer agreement (substantially in the form provided by Fluor to NuScale prior to the execution of this Agreement, with such changes thereto reasonably acceptable to NuScale) with the applicable Dealer in connection with any pledge, loan or delivery of shares under a Structured Sale Transaction.
viii.The limitations set forth in this Agreement shall not apply to any shares of Class A Common Stock issued upon the conversion of the 463,747 Class B Units held by NuScale Holdings Corp. as of the date of this Agreement, which are being separately converted pursuant to that certain Elective Exchange Notice (as defined in the NuScale LLC Agreement) delivered by NuScale Holdings Corp. to NuScale Power LLC on October 22, 2025; provided that if any such shares of Class A Common Stock issued to NuScale Holdings Corp. are subsequently
distributed to another Fluor Party, such shares of Class A Common Stock shall become subject to the limitations set forth in this Agreement.
b.NuScale Limitations.
i.NuScale hereby agrees that, from (and including) the date of this Agreement until (and including) February 28, 2026:
1.NuScale shall not, directly or indirectly, sell, issue, or offer to sell or issue any Newly Authorized Shares (as defined below) on any Blackout Date;
2.NuScale shall not engage in any underwritten offering, overnight marketed transaction, block trade, private placement or any other direct or indirect issuance or sale of the Newly Authorized Shares except for the issuance, sale or offer of no more than 20 million of the Newly Authorized Shares; provided that NuScale will not issue, sell or offer to sell any such Newly Authorized Shares in any underwritten, registered block trades (including an underwritten, overnight marketed offering) or any “PIPE” transaction sold to third-parties primarily for capital raising purposes.
ii.For the avoidance of doubt, the foregoing restrictions shall not apply to any shares of NuScale’s capital stock that are currently authorized but unissued as of the date of this Agreement.
iii.Fluor hereby acknowledges and agrees that NuScale shall not be subject to any contractual trading limitation under this Agreement with respect to any equity securities of NuScale at any time after February 28, 2026.
c.Definitions. For purposes of this Agreement:
i.“ADTV” means, for any trading day, the average daily trading volume of Class A Common Stock as reported by the New York Stock Exchange (and any other principal market on which such shares are then traded) for the 30 calendar days immediately preceding such trading day (unless a different time period is expressly provided in this Agreement). If ADTV for any day is unavailable, ADTV will be determined using the most recent day for which such data is available.
ii.“Affiliate” has the meaning set forth in Rule 12b-2 under the Exchange Act. “Controlled Affiliate” means, with respect to any Person, any Affiliate that is directly or indirectly controlled by such Person.
iii.“Blackout Dates” are the date of this Agreement through and including November 10, 2025; January 15, 2026 through and including March 3, 2026; and April 15 through and including May 11, 2026.
iv.“Non-Blackout Dates” are November 11, 2025 through and including January 14, 2026; March 4, 2026 through and including April 14, 2026; and May 12, 2026 through and including June 1, 2026.
v.“Transfer” means (a) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of any of the Exchanged Shares or any securities convertible into or exercisable or exchangeable for any of the Exchanged Shares, (b) establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder, with respect to any of the Exchanged Shares or any other shares of Class A Common Stock held or beneficially owned by Fluor, any shares of Class A Common Stock issuable upon the exercise of options to purchase shares of Class A Common Stock held or beneficially owned by Fluor, or any securities convertible into or exercisable or exchangeable for Class A Common Stock held or beneficially owned Fluor (together, as subject to the last sentence of this Section 2, the “Locked-Up Shares”), (c) enter into any swap, forward, option, short sale, future contract or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any of the Locked-Up Shares, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise or (d) publicly announce any intention to effect any transaction specified in clause (a), (b) or (c).
3.Exceptions to Fluor Daily Volume Limitation.
a.The restrictions set forth in Section 2(a) shall not apply to (and the Fluor Parties shall be permitted to consummate each of the following without NuScale’s prior consent):
i.the entry by a Fluor Party into any trading plan providing for the sale of shares of Class A Common Stock by Fluor, which trading plan meets the requirements of Rule 10b5-1(c) under the Exchange Act; provided, however, that sales effected under any such plan must comply with Section 2(a);
ii.the entry by Fluor into one or more structured sale transactions (including, without limitation, a reverse accelerated share repurchase transaction, variable forward sale, prepaid forward, or other substantially similar derivative transaction) entered into by a Fluor Party with a registered broker-dealer or other financial institution (each, a “Dealer”)
pursuant to which (i) Class A Common Stock held by Fluor is sold or otherwise economically transferred to the Dealer at a price or value based on one or more average-price measures of the Class A Common Stock during a specified valuation or averaging period (which may be subject to a floor and cap agreed between Fluor and the Dealer), (ii) no Fluor Party will sell the shares of Class A Common Stock subject to such structured sale transaction in the open market during such averaging period, and (iii) a number of shares of Class A Common Stock equal to the number of shares subject to such transaction will be pledged, loaned, or otherwise delivered to the Dealer as collateral (each, a “Structured Sale Transaction”); provided that (x) at the time of entering into a Structured Sale Transaction, the number of shares of Class A Common Stock underlying any such transaction and any other ongoing Structured Sale Transactions, divided by the aggregate number of trading days during the scheduled term of such transaction, shall not exceed the average of the daily sale limits applicable under Section 2(a) (i.e., six percent of the ADTV during each Blackout Date and three percent of the ADTV during each Non-Blackout Date), assuming that the ADTV for each trading day equals the ADTV for the four calendar weeks immediately preceding commencement of such transaction, and (y) the Structured Sale Transaction documentation shall expressly provide that there will be no acceleration and no final valuation or settlement prior to January 15, 2026. The actual final valuation date may occur earlier in accordance with the terms of the applicable Structured Sale Transaction, but in no event shall any such date occur prior to January 15, 2026. For the avoidance of doubt, the entry by a Fluor Party into any such Structured Sale Transaction, and any related pledge, loan, or transfer of Class A Common Stock to a Dealer (and any related hedging or other transactions by such Dealer in connection therewith), shall not constitute a violation of this Agreement so long as such transaction complies in all material respects with this Section 3(a)(ii) and applicable securities laws; for the avoidance of doubt, any Transfers under this Section 3(a)(ii) shall be aggregated with any other Transfers made by Fluor for the purpose of calculating any limitations in this Section 3(a)(ii) or Section 2(a);
iii.any Transfer made pursuant to a liquidation of NuScale Corp, merger of NuScale Corp, stock exchange or other similar transaction by NuScale Corp (provided Fluor shall not voluntarily participate in any such transaction in which the Board of Directors of NuScale Corp (or any authorized committee thereof) recommends against such transaction) which results in all of NuScale Corp’s securityholders exchanging their shares of Class A Common Stock for cash, securities or other property; provided, however, that securities issued to the applicable Fluor Party under any such plan where NuScale is the surviving party will continue to be subject to the restrictions in Section 2(a);
iv.any Transfer made solely to NuScale Corp in connection with the reclassification or exchange of all outstanding shares of Class A Common Stock of NuScale Corp; provided, however, that securities issued to the applicable Fluor Party under any such plan will continue to be subject to the restrictions in Section 2(a);
v.any Transfer made pursuant to a bona fide third-party tender offer (other than any tender offer in which the Board of Directors of NuScale Corp (or any authorized committee thereof) recommends against such tender) made to all holders of NuScale Corp’s capital stock involving a change of control of NuScale Corp (for purposes hereof, “change of control” shall mean the transfer, sale or other disposition (whether by tender offer, merger, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons, of shares of capital stock of NuScale Corp if, after such transaction or transactions, such person or group of affiliated persons would hold more than 50% of the outstanding voting securities of NuScale Corp (or the surviving entity)); or
vi.any Transfer to another wholly-owned subsidiary of Fluor; provided that (1) such subsidiary shall remain a controlled Affiliate of Fluor and shall retain the power to vote or direct voting of the Class A Common Stock Transferred to it until November 18, 2025; (2) such subsidiary shall enter into a joinder to this Agreement agreeing to all restrictions and covenants in this Agreement that any Fluor Parties are subject (including the voting obligations under Section 6 hereof) and (3) for the avoidance of doubt, for the purposes of this Agreement, any shares of Class A Common Stock sold by such subsidiary on any day will be aggregated with any shares of Class A Common Stock sold by all Fluor Parties.
4.Limitation on Knowing Transfers to 10% Holders. Without the prior written consent of NuScale, Fluor shall not, and shall not permit any other Fluor Party to, knowingly Transfer or agree to Transfer any shares of Class A Common Stock (or any securities convertible into or exercisable or exchangeable for Class A Common Stock) to any person or “group” (as such term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) (in each case, other than to another Fluor Party) that, together with its Affiliates, (a) beneficially owns or has the right to direct the voting of 10% or more of the outstanding voting securities of NuScale, or (b) would, after giving effect to such transfer, beneficially own or have the right to direct the voting of 10% or more of the outstanding voting securities of NuScale (after giving effect to any applicable “blocker” provision in any Structured Sale Transaction or similar agreement described in Section 3(a)(ii)). For purposes of this Section 4, “beneficial ownership” shall be determined in accordance with Rule 13d-3 under the Exchange Act, and references to “voting securities” shall include any securities that are directly or indirectly convertible into or exercisable or exchangeable for voting securities of NuScale.
5.Retained Rights. For the avoidance of any doubt, this Agreement shall not interfere with Fluor’s right to retain all of its rights as a stockholder of NuScale Corp, including to the fullest extent permitted by law the right to vote, and to receive any dividends and distributions in respect of, any NuScale securities as may be held of record or beneficially by Fluor as of the applicable record date. Except as expressly described herein, the Parties agree that this Agreement and the transactions contemplated hereby do not modify, change, amend, or waive any rights that any Party may have, all of which are expressly reserved.
6.Voting Covenant.
a.NuScale expects to call one or more special meetings of its stockholders reasonably promptly after the date of this Agreement to approve one or more amendments to its certificate of incorporation solely to increase the number of authorized shares of Class A Common Stock to be in excess of 330,000,000, but not greater than 662,000,000 (each, a “Charter Amendment”). From the date hereof until the earlier of (x) the date that the requisite NuScale stockholders have approved and adopted a Charter Amendment providing that the authorized number of shares of Class A Common Stock equals 662,000,000 and (y) January 1, 2027 (the “Support Period”), Fluor irrevocably and unconditionally agrees that at any meeting (whether annual or special and each postponement, recess, adjournment or continuation thereof) of the stockholders of NuScale Corp. (the “NuScale Stockholders”) called by NuScale Corp., and in connection with any written consent of the NuScale Corp. Stockholders, Fluor shall (i) appear at such meeting or otherwise cause all of the shares of Class A Common Stock over which Fluor has the power to vote or direct the voting (including any shares of Class A Common Stock over which such Fluor Affiliate has the power to vote or direct voting) as of the applicable record date (the “Subject Shares”), to be counted as present thereat for purposes of calculating a quorum; and (ii) vote or cause to be voted (including by proxy or written consent, if applicable) all such Subject Shares (x) in favor of the adoption of each Charter Amendment proposal, (y) in favor of any proposal to adjourn or postpone such meeting to a later date if such adjournment or postponement is proposed by or on behalf of the Company or the chairman of the meeting, at such meeting, and (z) against any action that would prevent, impede, interfere with, delay, postpone, or adversely affect the adoption of the Charter Amendment proposal. It is acknowledged and agreed that NuScale may seek to increase the authorized number of shares of Class A Common Stock in excess of 330,000,000 in one or more Charter Amendments and that the obligations of this Section 6 shall apply to each such Charter Amendment so long as such Charter Amendment does not increase the authorized number of shares of Class A Common Stock in excess of 662,000,000. The aggregate additional shares of Class A Common Stock approved pursuant to any Charter Amendment are referred to in this Agreement as the “Newly Authorized Shares.”
b.For the avoidance of doubt, the foregoing commitments apply to any Subject Shares held by any trust, limited partnership, limited liability company or other entity directly or indirectly holding Subject Shares for which Fluor serves as a
partner, stockholder, trustee or in a similar capacity so long as, and to the extent, Fluor exercises voting control over such Subject Shares. Fluor represents, covenants and agrees that, (i) except for this Agreement, it has not entered into, and shall not enter into during the Support Period, any commitment, agreement, understanding or other similar arrangement with any person to vote or give instructions in any manner with respect to any Subject Shares, including any voting agreement or voting trust and (ii) except as expressly set forth herein or with respect to routine matters at an annual meeting of the NuScale Stockholders, it has not granted, and shall not grant during the Support Period, a proxy, consent or power of attorney with respect to any Subject Shares. Fluor agrees not to enter into, and to cause NuScale Holdings Corp. and any of its other Affiliates not to enter into, any commitment, agreement, understanding or other arrangement with any person the primary intent of which is to frustrate the intent of the provisions of this Section 6. In furtherance and not in limitation of the foregoing, but only in the event and in each case that Fluor fails to be counted as present or fails to vote all of the Subject Shares in accordance with this Agreement, Fluor hereby appoints R. Ramsey Hamady, for so long as he/she serves as Chief Financial Officer of NuScale Corp, or any other person acting as Chief Financial Officer of NuScale Corp and any designee thereof, and each of them individually, its proxy and attorney-in-fact, with full power of substitution and resubstitution, to vote or act by written consent (and to instruct nominees or record holders to vote or act by written consent) during the Support Period with respect to any and all of such Subject Shares in accordance with this Section. This proxy and power of attorney are given to secure the performance of the duties of Fluor under this Agreement. Fluor hereby agrees that this proxy and power of attorney granted by Fluor shall be irrevocable through the Support Period, and shall be deemed to be coupled with an interest sufficient under applicable law to support an irrevocable proxy and shall revoke any and all prior proxies granted by Fluor with respect to any Subject Shares regarding the matters set forth in this Section. The power of attorney granted by Fluor herein is a durable power of attorney and shall survive the bankruptcy, death or incapacity of Fluor.
c.Fluor represents and warrants to NuScale that immediately following the consummation of the exchange contemplated by Section 1 of this Agreement: (i) Fluor Enterprises will own beneficially and of record, and has the power to vote or direct the voting of, 110,936,472 shares of Class A Common Stock, which constitute all of the Subject Shares as of such date; and (ii) Fluor Enterprises owns beneficially and of record the Subject Shares, free and clear of any proxy, voting restriction, adverse claim or other encumbrance (other than any restrictions under applicable federal or state securities laws).
7.Other Agreements.
a.Amendment to Tax Receivable Agreement. Concurrently with the execution of this Agreement, Fluor, NuScale Corp and NuScale LLC shall execute an amendment to that certain Tax Receivable Agreement, dated as of May 2, 2022, by and among NuScale Corp, NuScale LLC, the TRA Holders (as defined
therein), and the TRA Representative (as defined therein), in the form attached hereto as Exhibit A.
b.Release. Concurrently with the execution of this Agreement, Fluor, NuScale Corp and NuScale LLC shall execute a release agreement with respect to certain litigation and commercial matters.
c.Amendment to Exclusivity. Fluor agrees not to assert that any provision of the Exclusivity Agreement, dated as of September 30, 2011 (as amended, the “Exclusivity Agreement”), among NuScale LLC, NuScale Holdings Corp. and Fluor applies in circumstances where NuScale’s client is ENTRA1 Holdings LLC, ENTRA1 Energy LLC (“ENTRA1”), any of ENTRA1’s direct or indirect subsidiaries or other affiliates, or any joint venture between ENTRA1 and NuScale LLC, or any of their respective assigns or successor (the “ENTRA1 Clients”). The Parties hereby amend the Exclusivity Agreement as follows: (i) the performance by NuScale, or any of its direct or indirect subsidiaries or controlled affiliates, of their obligations under the Strategic Alliance Agreement, dated as of May 7, 2025, between NuScale LLC and ENTRA1 will not conflict with any provision of the Exclusivity Agreement with respect to any Fluor Party (or any assignee of any Fluor Party pursuant to an assignment effected on or after the date of this Agreement), it being understood that nothing in such amendment shall limit or impair the rights (if any) of any third party unaffiliated with Fluor or modify or limit any other exclusivity rights of Fluor under the Exclusivity Agreement other than as expressly set forth herein, and (ii) to the extent within NuScale’s reasonable control, for any project where an ENTRA1 Client is the client, Fluor shall have the right to bid on engineering, procurement, project management, or any other services typically performed by Fluor or its direct competitors as part of the development and execution of a project; provided, however, that (i) Fluor shall only have the right to bid on services that it is competitively providing in the market at that time and (ii) it is understood and acknowledged that the ENTRA1 Client shall make award decisions in its absolute and sole discretion (the “Amendment”). Other than as expressly set forth in the Amendment, the Exclusivity Agreement shall remain in effect. For the avoidance of doubt, nothing in the Amendment shall affect any right of any party besides Fluor and NuScale and their respective affiliates or under any agreement other than the Exclusivity Agreement.
8.Public Announcements. The Parties shall cooperate in the preparation of a joint communications package regarding the transactions contemplated by this Agreement. The initial press release and any other accompanying initial public announcement or filing describing such transactions shall be subject to prior review and mutual agreement of Fluor and NuScale.
9.Termination of Prior Exchange and Lock-Up Agreement. Each Party hereby agrees that this Agreement, as of the effective date of this Agreement, supersedes any and all obligations under that certain Exchange and Lock-Up Agreement, dated as of July 31, 2025 (the “Prior Exchange Agreement”), by and among NuScale and Fluor Enterprises, and, as of the effective date of this Agreement, the Prior Exchange Agreement is hereby terminated in full.
10.Entire Agreement; Amendment. This Agreement constitutes 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, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Agreement may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by the Parties. No amendment that would affect any right, release, or benefit of any of ENTRA1 or its affiliates shall be effective without the prior written consent of ENTRA1.
11.Assignment. No Party hereto may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written consent of the other Parties. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Agreement shall be binding on each Party and each of its respective successors, heirs and assigns and permitted transferees.
12.Governing Law and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Parties hereto (a) all agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Agreement shall be brought and enforced in the Court of Chancery of the State of Delaware, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (b) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
13.Remedies Cumulative. In the event that any Party fails to observe or perform any covenant or agreement to be observed or performed under this Agreement, the other Parties may proceed to protect and enforce its rights by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law, in equity, by statute or otherwise.
14.Notices. All notices or other communications required or permitted to be given by any Party to any other Party pursuant to the terms of this Agreement shall be in writing, unless otherwise specified in this Agreement, and if sent to Fluor, shall be delivered to Fluor Corporation, 6700 Las Colinas Blvd., Irving, Texas 75039, Attention: Kevin Hammonds, John Regan and Mitch Stone, emails: kevin.hammonds@fluor.com, john.regan@fluor.com, and mitchell.stone@fluor.com, with a copy to Gibson, Dunn & Crutcher LLP, 200 Park Avenue, New York, New York 10166, Attention: Andrew L. Fabens and Jonathan Whalen, emails: JWhalen@gibsondunn.com and AFabens@gibsondunn.com; or if sent to NuScale, shall be delivered to NuScale Power Corporation, 1100 NE Circle Blvd., Suite 200, Corvallis, Oregon 97330, Attention: James D. Canafax, Misha Goloborodko and Aurelian Bukatko, emails:
jcanafax@nuscalepower.com, mgoloborodko@nuscalepower.com, and abukatko@nuscalepower.com, with a copy to O’Melveny & Myers LLP, Two Embarcadero Center, 28th Floor, San Francisco, California 94111, Attention: C. Brophy Christensen and David Ni, email: bchristensen@omm.com and dni@omm.com. Each Party to this Agreement may change such address for notices by sending to the Parties to this Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given, if sent by e-mail, on the business day on which receipt is confirmed by the individual to whom the notice is sent, other than via auto-reply.
15.Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery of an executed signature page to this Agreement by email, DocuSign or other electronic submission shall be as effective as delivery of a manually signed counterpart of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have duly executed this Agreement, as of the date first written above.
NuScale Power Corporation
By: /s/ John L. Hopkins
Name: John L. Hopkins
Title: President and Chief Executive Officer
NuScale Power, LLC
By: /s/ John L. Hopkins
Name: John L. Hopkins
Title: President and Chief Executive Officer
[Signature Page to Exchange Agreement]
IN WITNESS WHEREOF, the Parties have duly executed this Agreement, all as of the date first written above.
Fluor Corporation
By: /s/ Kevin B. Hammonds
Name: Kevin B. Hammonds
Title: Executive Vice President, Chief Legal Officer and Corporate Secretary
Fluor Enterprises, Inc.
By: /s/ Kevin B. Hammonds
Name: Kevin B. Hammonds
Title: Executive Vice President, Chief Legal Officer and Corporate Secretary
[Signature Page to Exchange Agreement]
Exhibit A
Form of Amendment to Tax Receivable Agreement
TAX RECEIVABLE AGREEMENT AMENDMENT
This Tax Receivable Agreement Amendment (this “Agreement”) is entered into as of November 6, 2025, by and among NuScale Power Corp., a Delaware corporation (NuScale Power Corp., together with each of its Subsidiaries that is classified as a corporation for U.S. federal income tax purposes, and each successor thereto, the “Corporation”), NuScale Power, LLC, an Oregon limited liability company that is classified as a partnership for U.S. federal income tax purposes (the “Company”), and Fluor Enterprises, Inc., a California corporation (“Fluor Enterprises” and, together with the Corporation and the Company, the “Parties”). Unless otherwise specifically defined herein, each capitalized term used herein but not otherwise defined herein shall have the meaning assigned to such term in the TRA (as defined below).
RECITALS
WHEREAS, the Corporation, the Company, Fluor Enterprises and the other TRA Holders entered into that certain Tax Receivable Agreement, dated as of May 2, 2022 (the “TRA”);
WHEREAS, concurrently with the execution of this Agreement, the Parties are entering into that certain Exchange Agreement, dated as of November 6, 2025 (the “Exchange Agreement”), which contemplates, among other matters, the exchange of 100% of the Class B Units of the Company (and the retirement of shares of Class B Common Stock of the Corporation) held by Fluor Enterprises into shares of Class A Common Stock of the Corporation;
WHEREAS, in connection with the transactions contemplated by the Exchange Agreement, the Parties desire to amend the TRA to modify the calculation of the Net Tax Benefit solely with respect to payments due under the TRA to Controlled Affiliates of Fluor Corporation, a Delaware corporation (“Fluor”), including Fluor Enterprises;
WHEREAS, pursuant to Section 6.07(b)(i) of the TRA, the TRA may be amended with the written consent of the Corporation, the Company and the TRA Holders who would be entitled to receive at least two-thirds of the Early Termination Payments payable to all TRA Holders (as determined by the Corporation) if the Corporation had exercised its right of early termination under Section 3.01(a) of the TRA on the date of the most recent Exchange prior to such amendment (excluding, for purposes of this sentence, all payments made to any TRA Holder pursuant to this Agreement since the date of such most recent Exchange) (such TRA Holders, the “Supermajority TRA Holders”); and
WHEREAS, Fluor Enterprises constitutes the Supermajority TRA Holders under the TRA as of the date hereof.
NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, and intending to be legally bound, the Parties hereby agree as follows:
1.Definitions; References. This Agreement shall constitute an amendment of the TRA. To the extent there is a conflict or inconsistency between the terms of this Agreement and the terms of the TRA (prior to giving effect to this Agreement), this Agreement
shall govern. For purposes of this Amendment, the following term shall have the following meaning:
a.“Controlled Affiliate” means, with respect to Fluor, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with Fluor, where “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
2.Amendment to Calculation of Payments to Fluor. The Parties hereby agree that, notwithstanding any provision of the TRA to the contrary, solely for the purpose of calculating any Tax Benefit Payment or any other payment payable under the TRA to Fluor or any of its Controlled Affiliates, the percentage “85%” as used in the definition of “Net Tax Benefit” in the TRA and Section 6.09(a) of the TRA shall be deemed to be “42.5%”. For the avoidance of doubt, the percentage “85%” as used in the definition of “Net Tax Benefit” shall continue to apply for purposes of calculating any and all payments payable to any TRA Holder that is not Fluor or one of its Controlled Affiliates.
3.Representations and Warranties of the Corporation and the Company. The Corporation and the Company each represents and warrants to Fluor Enterprises as follows (which representations and warranties shall survive until the expiration of the applicable statute of limitations):
a.Authorization of Transaction. Each of the Corporation and the Company has all requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by each of the Corporation and the Company of this Agreement and the performance by each of the Corporation and the Company of this Agreement and the consummation by each of the Corporation and the Company of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate or limited liability company action on the part of the Corporation and the Company, respectively. This Agreement has been duly and validly executed and delivered by each of the Corporation and the Company and constitutes a valid and binding obligation of each of the Corporation and the Company, enforceable against each of the Corporation and the Company in accordance with its terms, except as such enforcement may be limited by general equitable principles or by applicable bankruptcy, insolvency, fraudulent transfer, moratorium, or similar laws, legal requirements and judicial decisions from time to time in effect which affect creditors’ rights generally.
b.Non-contravention. Neither the execution and delivery by the Corporation or the Company of this Agreement, nor the consummation by the Corporation or the
Company of the transactions contemplated hereby, will (i) conflict with or violate any provision of the organizational documents of the Corporation or the Company, (ii) require on the part of the Corporation or the Company any notice to or filing with, or any permit, authorization, consent or approval of, any governmental entity or (iii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to the Corporation or the Company or any of its properties or assets.
c.No Additional Representations. The Corporation and the Company each acknowledges that no person has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding Fluor Enterprises furnished or made available to the Corporation or the Company and its representatives, except as expressly set forth in this Agreement or the Exchange Agreement.
4.Representations and Warranties of Fluor Enterprises. Fluor Enterprises warrants to the Corporation and the Company as follows (which representations and warranties shall survive until the expiration of the applicable statute of limitations):
a.Authorization of Transaction. Fluor Enterprises has all requisite power and authority (corporate or otherwise) to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery by Fluor Enterprises of this Agreement and the performance by Fluor Enterprises of this Agreement and the consummation by Fluor Enterprises of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action on the part of Fluor Enterprises. This Agreement has been duly and validly executed and delivered by Fluor Enterprises and constitutes a valid and binding obligation of Fluor Enterprises, enforceable against Fluor Enterprises in accordance with its terms, except as such enforcement may be limited by general equitable principles or by applicable bankruptcy, insolvency, fraudulent transfer, moratorium, or similar laws, legal requirements and judicial decisions from time to time in effect which affect creditors’ rights generally.
b.Non-contravention. Neither the execution and delivery by Fluor Enterprises of this Agreement, nor the consummation by Fluor Enterprises of the transactions contemplated hereby, will (i) conflict with or violate any provision of the organizational documents of Fluor Enterprises, (ii) require on the part of Fluor Enterprises any notice to or filing with, or any permit, authorization, consent or approval of, any governmental entity or (iii) violate any order, writ, injunction, decree, statute, rule or regulation applicable to Fluor Enterprises or any of its properties or assets.
c.No Additional Representations. Fluor Enterprises acknowledges that no person has made any representation or warranty, express or implied, as to the accuracy or completeness of any information regarding the Corporation or the Company
furnished or made available to Fluor Enterprises and its representatives, except as expressly set forth in this Agreement or the Exchange Agreement.
5.Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware, without regard to the conflicts of laws principles thereof that would mandate the application of the laws of another jurisdiction.
6.Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
7.Entire Agreement. The Exchange Agreement, the TRA (as amended by this Agreement) and this Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof.
[Signature Page Follows]
IN WITNESS THEREOF, the undersigned has executed this Agreement as of the day and year first above written.
| | | | | | | | | | | | | | | | | |
| | CORPORATION: |
NuScale Power Corp., a Delaware corporation |
| | | |
| | |
| By: | | | |
| Name: | | John L. Hopkins | |
| Title: | | President and Chief Executive Officer | |
| | | | | | | | | | | | | | |
| | COMPANY: |
NuScale Power, LLC, an Oregon limited liability company |
| | |
| |
| By: | | |
| Name: | | John L. Hopkins |
| Title: | | President and Chief Executive Officer |
| | | | | | | | |
| | |
| FLUOR ENTERPRISES |
Fluor Enterprises, Inc., a California corporation |
| By: | | |
| Name: | | Kevin B. Hammonds |
| Title: | | Executive Vice President, Chief Legal Officer and Corporate Secretary |
Exhibit 3
Execution Version
Goldman Sachs International | Plumtree Court | 25 Shoe Lane | London EC4A 4AU
Tel: 020-7774-1000 | Telex: 887902 | Cable: GOLDSACHS LONDON
Registered in England No. 2263951 | Registered Office As Above | Authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority
Opening Transaction
| | | | | |
To: |
Nuke Holdings, LLC |
A/C: |
041548777 |
From: |
Goldman Sachs International |
Re: |
Variable Price Forward Sale Transaction |
Ref. No: |
[Insert Reference Number] |
Date: |
November 9, 2025 |
The purpose of this letter agreement (including Annex A attached hereto and the Credit Support Annex (as defined below), this “Confirmation”) is to confirm the terms and conditions of the Transaction entered into among Goldman Sachs International (“Dealer”), Goldman Sachs & Co. LLC (“GS&Co.”), as collateral custodian (in such capacity, the “Custodian”) and Nuke Holdings, LLC (“Counterparty”), on the Trade Date specified below (the “Transaction”). This Confirmation constitutes the “Confirmation” as referred to in the Agreement specified below. This Confirmation is a confirmation for purposes of Rule 10b-10 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Dealer is acting as principal in the Transaction and GS&Co., its affiliate, is acting as agent (within the meaning of Rule 15a-6 under the Exchange Act) for Dealer and Counterparty in the Transaction, as set forth in Section 22(a) hereof. Dealer is not a member of the Securities Investor Protection Corporation.
This Confirmation evidences a complete binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement (the “Agreement”) in the form of the ISDA 2002 Master Agreement as if Dealer and Counterparty had executed an agreement in such form (without any Schedule but (i) with the election of English law as governing law and US Dollars (“USD”) as the Termination Currency and (ii) with the elections set forth in this Confirmation). Notwithstanding any other agreement between the parties to the contrary, the Transaction shall be the only transaction under the Agreement. Notwithstanding anything to the contrary in any other ISDA Master Agreement between Dealer and Counterparty, whether now existing or entered into after the date hereof, this Transaction shall not be a “Transaction” under such other ISDA Master Agreement. The definitions and provisions contained in the 2006 ISDA Definitions (the “Swap Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the Swap Definitions, the “Definitions”) as published by ISDA are incorporated into this Confirmation.
In addition, on the Trade Date of the Transaction under this Confirmation, Dealer and the Counterparty shall be deemed to have entered into a credit support annex in the form of the English version of the 1995 ISDA Credit Support Annex (Bilateral Form-Transfer) (with a Paragraph 11 in the form set forth in Annex C hereto) (the “Credit Support Annex”)). The Credit Support Annex deemed to be entered into with respect to the Transaction shall constitute a “Confirmation” that supplements, forms part of, and is subject to, the Agreement with effect from the Trade Date of the Transaction, and the credit support arrangements set out in the Credit Support Annex shall constitute a “Transaction” that is subject to the Agreement.
In the event of any inconsistency among this Confirmation, the Definitions or the Agreement, the following will prevail for purposes of the Transaction in the order of precedence indicated: (i) this Confirmation; (ii) the Equity Definitions; (iii) the Swap Definitions; and (iv) the Agreement.
1.General Terms:
This Confirmation, together with the Agreement, shall constitute the written agreement between Counterparty and Dealer with respect to the Transaction. For purposes of the Equity Definitions, the Transaction to which this Confirmation relates is a Share Forward Transaction, the terms of which include:
Trade Date: November 9, 2025
Seller: Counterparty
Buyer: Dealer
Issuer: NuScale Power Corporation
Shares: The shares of Class A common stock, par value $0.0001 per share, of the Issuer (Ticker Symbol: “SMR”).
Number of Shares: As set forth in Annex A.
Share Delivery: By 12:00 noon New York City time on the Final Settlement Date (as defined below), Counterparty shall sell, convey, transfer, assign and deliver to Dealer a number of Shares equal to the Number of Shares (the “Purchased Shares”) in accordance with Section 9.4 of the Equity Definitions.
The provisions of the last sentence of Section 9.2 and Sections 9.8, 9.9,
9.11 and 9.12 of the Equity Definitions will be applicable to Counterparty’s delivery of Shares contemplated above as if such delivery were a “Physical Settlement” under the Equity Definitions. For the avoidance of doubt, upon such delivery Dealer will become the absolute owner of such Shares for all purposes. Counterparty shall be deemed to represent to Dealer on the Final Settlement Date that all of the representations set forth in Section 9.11 of the Equity Definitions shall be true and correct with respect to the delivery of Purchased Shares to Dealer. Without limiting the generality of the foregoing, the Purchased Shares shall be delivered to Dealer in book-entry form (which are registered in the name of The Depository Trust Company’s (the “DTC”) nominee, maintained in the form of book entries on the books of DTC and allowed to be settled through DTC’s regular book-entry settlement services) without any restrictive legend.
Interim Payments: On each date specified in Annex A on or prior to the Cash Settlement
Payment Date (each, an “Interim Payment Date”), Dealer shall pay to Counterparty, subject to the Counterparty’s written election described below, an amount in cash in immediately available funds equal to the Interim Payment Amount for such Interim Payment Date.
Counterparty may, by written notice to Dealer no later than 5:00 p.m. (New York City time) two (2) Exchange Business Days prior to the relevant Interim Payment Date, elect to reduce the Interim Payment Amount (including to zero).
Interim Payment Amount: For each Interim Payment Date, an amount in USD as set forth in Annex
A.
Prepayment: Not Applicable.
Variable Obligation: Not Applicable.
Forward Price: The arithmetic average of the VWAP Prices for the Valid Days in the Calculation Period, subject to “Valuation Disruption” below.
Additional Amount: An amount determined by the Calculation Agent equal to the Forward
Price multiplied by the Applicable Percentage.
Applicable Percentage: As set forth in Annex A.
VWAP Price: For any Exchange Business Day, the per Share volume-weighted average price between the hours of 9:30:00 A.M. New York time and 4:00:00 P.M. New York time as displayed under the heading “Bloomberg VWAP” on Bloomberg page “SMR <Equity> AQR” (or any successor thereto) at 4:15
P.M. New York time (or 15 minutes following the end of any extension of the regular trading session) on such Exchange Business Day or, if such volume-weighted average price is unavailable for any reason or is manifestly erroneous, the market value of one Share on such Exchange Business Day, as reasonably determined by the Calculation Agent using a volume-weighted method after consultation pursuant to the last paragraph of “Calculation Agent” below, it being understood that the Calculation Agent shall comply with its obligations under such paragraph in respect of such determination.
Exchange: The New York Stock Exchange
Related Exchange(s): All Exchanges
Clearance System: The Depository Trust Company.
Valuation:
Valuation Time: The Scheduled Closing Time; provided that if the principal trading session is extended, the Calculation Agent may determine the Valuation Time in its commercially reasonable discretion.
Valuation Date: The Scheduled Valuation Date; provided that Dealer shall have the right to designate any Scheduled Trading Day on or after the First Acceleration Date to be the Valuation Date for all or any portion of the Transaction (the “Accelerated Valuation Date”) by delivering notice to Counterparty of any such designation prior to 7:00 P.M. New York City time on the Exchange Business Day immediately following the designated Accelerated Valuation Date.
Calculation Period: The period from and including the Calculation Period Start Date to and
including the Valuation Date.
Calculation Period Start Date: As set forth in Annex A. Scheduled Valuation Date: As set forth in Annex A. First Acceleration Date: As set forth in Annex A.
Valuation Disruption: Notwithstanding anything to the contrary in the Equity Definitions, to the
extent that a Disrupted Day occurs during the Calculation Period, the Calculation Agent may, in its good faith and commercially reasonable discretion, postpone the Scheduled Valuation Date. If any such Disrupted Day is a Disrupted Day because of a Market Disruption Event (or a deemed Market Disruption Event as provided herein), the Calculation
Agent shall determine whether (i) such Disrupted Day is a Disrupted Day in full, in which case the VWAP Price for such Disrupted Day shall not be included for purposes of determining the Forward Price, or (ii) such Disrupted Day is a Disrupted Day only in part, in which case the VWAP Price for such Disrupted Day shall be determined by the Calculation Agent after
consultation pursuant to the last paragraph of “Calculation Agent” below based on transactions in the Shares on such Disrupted Day taking into account the nature and duration of the relevant Market Disruption Event, and the weighting of the VWAP Price for the relevant Valid Days during the Calculation Period shall be adjusted in good faith and a commercially reasonable manner by the Calculation Agent, in each case after consultation with Counterparty in the manner set forth in the last paragraph of “Calculation Agent” below, for purposes of determining the Forward Price, with such adjustments based on, among other factors, the nature and duration of any Market Disruption Event and the volume, historical trading patterns and price of the Shares, it being understood that the Calculation Agent shall comply with its obligations under the last paragraph of “Calculation Agent” below in respect of such determination. Any Scheduled Trading Day on which the Exchange is scheduled to close prior to its normal close of trading shall be deemed to be a Disrupted Day in full.
If a Disrupted Day occurs during the Calculation Period and each of the nine immediately following Scheduled Trading Days is a Disrupted Day (a “Disruption Event”), then the Calculation Agent, in its good faith and commercially reasonable discretion, may deem such Disruption Event (and each consecutive Disrupted Day thereafter) to be either (x) a Potential Adjustment Event or (y) if the Calculation Agent determines that no adjustment that it could make under clause (x) will produce a commercially reasonable result, an Additional Termination Event, with Counterparty as the sole Affected Party and the Transaction as the sole Affected Transaction.
The definition of “Market Disruption Event” in Section 6.3(a) of the Equity Definitions is hereby amended by deleting the words (A) “at any time during the one-hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be”, (B) inserting the words “at any time on any Scheduled Trading Day during the Calculation Period” after the word “material,” in the third line thereof and (C) replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure, or (iv) a Regulatory Disruption.”.
Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
Valid Day: Each Exchange Business Day during the Calculation Period.
Settlement Terms:
Cash Settlement: Applicable; provided that notwithstanding Section 8.4(a) of the Equity
Definitions, following delivery of the Number of Shares on the Final Settlement Date pursuant to “Share Delivery” above, (i) if the Forward Cash Settlement Amount is a positive number, Dealer shall pay to Counterparty an amount in USD equal to the Forward Cash Settlement Amount on the Cash Settlement Payment Date and (ii) if the Forward Cash Settlement Amount is a negative number, Counterparty shall pay to Dealer an amount in USD equal to the absolute value of the Forward Cash Settlement Amount on the Cash Settlement Payment Date.
Forward Cash
Settlement Amount: An amount determined by the Calculation Agent equal to (x) the product
of (i)(A) the Forward Price plus (B) the Additional Amount and (ii) the Number of Shares minus (y) the sum of all Interim Payment Amounts paid on or prior to the Cash Settlement Payment Date (if any). For the avoidance of doubt, if a Cash Settlement Payment Date is also an Interim Payment Date, the requirements to make such payments shall be netted against one another as provided in Section 7(d)(i) of this Confirmation.
Final Settlement Date: In the case of an Acceleration Valuation Date, the date that is one
Clearance System Business Day immediately following the date on which Dealer delivers the notice described in “Valuation Date”, and in the case of the Scheduled Valuation Date, the date that is one Clearance System Business Day immediately following the Scheduled Valuation Date.
Cash Settlement Payment Date: The Final Settlement Date or, if such date is not a Currency Business Date,
the next following Currency Business Day.
Settlement Currency: USD
Adjustments:
Potential Adjustment Event: In addition to the events described in Section 11.2(e) of the Equity
Definitions, it shall constitute an additional Potential Adjustment Event if
(x) the Scheduled Valuation Date is postponed pursuant to “Valuation Disruption” above, (y) a Regulatory Disruption occurs or (z) a Disruption Event occurs.
“Extraordinary Dividend” means any dividend or distribution on the Shares that is not of a type described in clause (i) or clause (ii) of Section 11.2(e) of the Equity Definitions for which the ex-dividend date occurs from the Trade Date to and including the date on which Counterparty has satisfied all of its payment and delivery obligations hereunder in respect of the Transaction. Article 10 of the Equity Definitions shall not apply to this Transaction.
Method of Adjustment: Calculation Agent Adjustment.
Extraordinary Events:
New Shares: Section 12.1(i) of the Equity Definitions is hereby amended by (a) deleting the text in clause (i) in its entirety and replacing it with the phrase “publicly quoted, traded or listed on any of the New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market (or their respective successors) and” and (b) adding the phrase “and (iii) issued by a corporation organized under the laws of the United States, any State thereof or the District of Columbia” immediately prior to the period.
Consequences of Merger Events:
Share-for-Share: Modified Calculation Agent Adjustment
Share-for-Other: Cancellation and Payment
Share-for-Combined: Component Adjustment Consequences of Tender Offers:
Tender Offer: Applicable; provided that Section 12.1(d) of the Equity Definitions is hereby amended by adding “, or of the outstanding Shares,” before “of the
Issuer” in the fourth line thereof. Section 12.1(e) and 12.1(l)(ii) of the Equity Definitions are hereby amended by adding “or Shares, as applicable,” after “voting shares”.
Share-for-Share: Modified Calculation Agent Adjustment
Share-for-Other: Modified Calculation Agent Adjustment
Share-for-Combined: Modified Calculation Agent Adjustment Announcement Events:
Consequence of Announcement
Events: Modified Calculation Agent Adjustment as set forth in Section 12.3(d) of the Equity Definitions; provided that, in respect of an Announcement Event, (x) references to “Tender Offer” shall be replaced by references to “Announcement Event” and references to “Tender Offer Date” shall be replaced by references to “date of such Announcement Event”, (y) the words “whether within a commercially reasonable (as determined by the Calculation Agent) period of time prior to or after the Announcement Event” shall be inserted prior to the word “which” in the seventh line of such Section 12.3(d), and (z) for the avoidance of doubt, the Calculation Agent shall determine the effect on the Transaction of such Announcement Event and adjust the terms of the applicable Transaction accordingly, including adjustments to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the applicable Shares or to the applicable Transaction on one or more occasions on or after the date of the Announcement Event, it being understood that any adjustment in respect of an Announcement Event shall take into account any earlier adjustment relating to the same Announcement Event. An Announcement Event shall be an “Extraordinary Event” for purposes of the Equity Definitions, to which Article 12 of the Equity Definitions is applicable.
Announcement Event: The public announcement by any entity of (i) any transaction or event that,
if completed, would constitute a Merger Event or Tender Offer, (ii) any potential acquisition or disposition by Issuer and/or its subsidiaries where the aggregate consideration exceeds 25% of the market capitalization of Issuer as of the date of such announcement (a “Transformative Transaction”), (iii) the intention to enter into a Merger Event, Tender Offer or Transformative Transaction, (iv) an intention of Issuer to solicit or enter into, or to explore strategic alternatives or other similar undertaking that includes, or would reasonably be expected to include, a Merger Event, Tender Offer or Transformative Transaction, or (v) any subsequent public announcement by any entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i), (ii), (iii) or (iv) of this sentence (including, without limitation, a new announcement, whether or not by the same party, relating to such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention), as determined by the Calculation Agent in good faith and in a commercially reasonable manner. For the avoidance of doubt, the occurrence of an Announcement Event with respect to any transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” “Merger Event” shall be read with references therein to “100%” being replaced by “15%”
and to “50%” by “75%” and without reference to the clause beginning immediately following the definition of “Reverse Merger” therein.
Composition of Combined
Consideration: Not Applicable; provided that, notwithstanding Sections 12.5(b) and 12.1(f) of the Equity Definitions, to the extent that the composition of the consideration for the relevant Shares pursuant to a Tender Offer or Merger Event could be elected by a holder of the Shares, the Calculation Agent will, in its sole discretion, determine the composition to be used for the purpose of determining adjustments hereunder.
Nationalization,
Insolvency or Delisting: Cancellation and Payment; provided that, in addition to the provisions of
Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the Nasdaq Global Select Market or the Nasdaq Global Market (or their respective successors); if the Shares are immediately re- listed, re-traded or re-quoted on any such exchange or quotation system, such exchange or quotation system shall thereafter be deemed to be the Exchange.
Limitation on Certain
Adjustments: Notwithstanding any provision of the Equity Definitions or this Confirmation to the contrary, no adjustment solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction as a result of a Potential Adjustment Event or an Extraordinary Event shall increase the Number of Shares; provided, for the avoidance of doubt, that such limitation shall not apply to adjustments as a result of events having a dilutive or concentrative effect on the Shares. Notwithstanding any provision of the Equity Definitions or this Confirmation to the contrary, if the Calculation Agent determines that no such adjustment that it could make in accordance with the preceding sentence will produce a commercially reasonable result, then the Calculation Agent may notify the parties that the consequence of such event shall be the termination of such Transaction, in which case “Cancellation and Payment” will be deemed to apply and any payment to be made by one party to the other shall be calculated in accordance with Section 12.7 of the Equity Definitions.
Additional Disruption Events:
Change in Law: Applicable; provided that (a) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (i) replacing the phrase “the interpretation” in the third line thereof with the phrase “, or public announcement or statement of, the formal or informal interpretation”, (ii) by replacing the word “Shares” where it appears in clause (X) thereof with the words “Hedge Position”, (iii) adding the words”, or holding, acquiring or disposing of Shares or any Hedge Positions relating to,” after the words “obligations under” in clause (Y) thereof and (iv) by immediately following the word “Transaction” in clause (X) thereof, adding the phrase “in the manner contemplated by the Hedging Party on the Trade Date”; provided further that (i) any determination as to whether (A) the adoption of or any change in any applicable law or regulation (including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute) or (B) the promulgation of or any change in the interpretation by any court, tribunal or regulatory authority with competent jurisdiction of any applicable law
or regulation (including any action taken by a taxing authority), in each case, constitutes a “Change in Law” shall be made without regard to
Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”) or any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, and (ii) Section 12.9(a)(ii) of the Equity Definitions is hereby amended by replacing the parenthetical beginning after the word “regulation” in the second line thereof with the words “(including, for the avoidance of doubt and without limitation, (x) any tax law or (y) adoption or promulgation of new regulations authorized or mandated by existing statute)” and (b) Dealer shall not terminate the Transaction for a Change in Law referred to in clause (Y) of Section 12.9(a)(ii) of the Equity Definitions except to the extent such Change in Law is generally applicable in similar situations and applied to the Transaction hereunder in a non- discriminatory manner.
Failure to Deliver: Not Applicable
Insolvency Filing: Applicable; provided that the definition of “Insolvency Filing” in Section
12.9 of the Equity Definitions shall be amended by deleting the clause “provided that proceedings instituted or petitions presented by creditors and not consented to by the Issuer shall not be deemed an Insolvency Filing” at the end of such definition and replacing it with the following: “; or it has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is presented for its winding-up or liquidation by a creditor and such proceeding is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof.”
Section 12.9(b)(i) of the Equity Definitions is hereby amended by adding the following sentence at the end: “If neither party elects to terminate the Transaction, the Calculation Agent may adjust the terms of the Transaction upon the occurrence of such an event pursuant to Modified Calculation Agent Adjustment (as if such event were a Tender Offer).”
Hedging Disruption: Applicable; provided that
(a)Section 12.9(a)(v) of the Equity Definitions is hereby modified by inserting the following at the end of such Section:
“For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, the transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing and other terms.”; and
(b)Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.
Increased Cost of Hedging: Applicable; provided that, Section 12.9(a)(vi) of the Equity Definitions is
hereby amended by inserting the following parenthetical immediately following the term “equity price risk” in the fifth line thereof: “(including, for the avoidance of doubt and without limitation, stock price risk and volatility risk).”
Increased Cost of Stock Borrow: Applicable; provided that Section 12.9(b)(v) of the Equity Definitions shall
be amended by (i) adding the word “or” immediately before the phrase
“(B)”, (ii) replacing “either party” in the penultimate sentence with “the Hedging Party”, (iii) deleting subsection (C) in its entirety, and (iv) deleting clause (X) and the words “or (Y)” in the final sentence.
Initial Stock Loan Rate: On or prior to the Relevant Date, 100 basis points per annum and, after the
Relevant Date, 25 basis points per annum.
Relevant Date: November 18, 2025
Loss of Stock Borrow: Applicable; provided that Section 12.9(b)(iv) of the Equity Definitions
shall be amended by (i) replacing “neither the Non-Hedging Party nor the Lending Party lends” in the penultimate sentence with “the Lending Party does not lend”, and (ii) deleting subsection (A) in its entirety.
Maximum Stock Loan Rate: Two hundred (200) basis points per annum.
For the avoidance of doubt, if Dealer is not at any time following the Relevant Date permitted to take title to the full number of Shares required pursuant to the Credit Support Annex, the cost (rate) of stock borrow for the purposes of Section 12.9(b)(iv) and 12.9(b)(v), any Price Adjustment or amount paid by Counterparty pursuant to Section 12.9(b)(iv) or 12.9(b)(v), as the case may be, of the Equity Definitions will include, in addition to the rate to borrow Shares incurred by the Hedging Party (or that the Hedging Party determines, in the exercise of its commercially reasonable discretion, it would have incurred based on the available market borrow at the time), any balance sheet charges, capital charges and funding costs incurred by Hedging Party (or that the Hedging Party determines, in the exercise of its commercially reasonable discretion, it would have incurred based on the market conditions at the time) on account of such event.
The term “Hedging Shares” in Section 12.9(a)(x) of the Equity Definitions shall be amended by inserting the following parentheticals immediately following the terms “with respect to a Transaction” “(including collateral provisions set forth in the Security Agreement and/or the Credit Support Annex related thereto)”.
Hedging Party: Dealer or an Affiliate of Dealer shall be the Hedging Party with respect to each Additional Disruption Event.
Hedge Positions: The definition of “Hedge Positions” in Section 13.2(b) of the Equity Definitions shall be amended by inserting the words “or an affiliate thereof” after the words “a party” in the third line.
Determining Party: Dealer for all Extraordinary Events.
Non-Reliance: Applicable
Agreements and Acknowledgments
Regarding Hedging Activities: Applicable
Additional Acknowledgments: Applicable
Calculation Agent: Dealer. Whenever the Calculation Agent is required to act or to exercise judgment in any way with respect to the Transaction, it will do so in good faith and in a commercially reasonable manner.
Following the occurrence and during the continuation of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting Party, Counterparty shall have the right to select a leading dealer in the market for U.S. corporate equity
derivatives reasonably acceptable to Dealer, to replace Dealer as Calculation Agent, and the parties shall work in good faith to execute any appropriate
documentation required by such replacement Calculation Agent.
Following any determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will promptly (but in any event no later than five (5) Exchange Business Days following receipt of such written request), provide to Counterparty by email to the e-mail address provided by Counterparty in such written request a report displaying in reasonable detail the basis for such determination or calculation, as the case may be; provided that Dealer shall not be required to disclose any proprietary or confidential models of Dealer or any information that is proprietary or subject to contractual, legal or regulatory obligations to not disclose such information.
If contemplated opposite the captions “VWAP Price” and “Valuation Disruption” above, the Calculation Agent shall consult in good faith on a non-binding basis with Counterparty in making determinations of the VWAP Price and the weighing thereof for the relevant Valid Day, it being understood that Counterparty, at any time on which it makes such consultation, shall be deemed to make the representation set forth in Section 3(b) of this Confirmation as of the time of such consultation, and that such consultation shall not delay the Calculation Agent’s ability to make any such determination.
(a)Credit Support Document. That certain security agreement between Counterparty and Dealer, dated as of the date hereof (as amended or modified from time to time, the “Security Agreement”) and the Credit Support Annex shall each shall constitute a Credit Support Document for purposes of the Transaction with respect to Counterparty.
(b)Conditions to Effectiveness. The effectiveness of this Transaction is subject to the satisfaction or waiver (such waiver to be in writing and in Dealer’s sole discretion) by Dealer of the following conditions:
(i)The representations and warranties of Counterparty contained herein, in the Agreement (including as may be modified herein) and each Credit Support Document shall be true and correct as of the Trade Date as if made on the Trade Date;
(ii)Counterparty shall have performed all of the covenants and obligations to be performed by Counterparty on or prior to the Trade Date, under the Agreement (including as may be modified herein) and under each Credit Support Document;
(iii)Dealer shall have received an opinion of Gibson, Dunn & Crutcher LLP, counsel to Counterparty, in form and substance reasonably satisfactory to Dealer;
(iv)Counterparty shall have delivered to Dealer a copy of the constitutive or organizational documents in respect of Counterparty in effect as of the date hereof (the “Organizational Documents”) showing the appointment of an “independent
director” (or any comparable term under and as defined in the Organizational Documents);
(v)Fluor Corporation (“Parent”) shall have executed a parent agreement, substantially in the form attached hereto as Exhibit I, dated as of the date of this Confirmation, in favor of Dealer (the “Parent Agreement”); and
(vi)Each of Counterparty and Dealer have duly executed the Security Agreement.
3.Securities Law Representations and Agreements. Counterparty hereby represents and warrants to, and agrees with, Dealer as follows:
(a)To the extent that the Collateral Shares (as defined in the Security Agreement) are “restricted securities” (within the meaning of Rule 144 (“Rule 144”) under the Securities Act of 1933 as amended (the “Securities Act”)), the Counterparty’s holding period (calculated in accordance with Rule 144(d) under the Securities Act) with respect to the Collateral Shares commenced at least 12 months prior to the date hereof.
(b)As of Trade Date and at any time at which Counterparty makes any election under the Transaction (including any Settlement Method Election), Counterparty is not in possession of any material non-public information concerning the Issuer or the Shares. “Material” information for these purposes is any information to which an investor would reasonably attach importance in reaching a decision to buy, sell or hold securities of the Issuer.
(c)Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of applicable law.
(d)Counterparty understands and will comply with Counterparty’s responsibilities under applicable securities laws in connection with the Transaction hereunder including, but not limited to, the provisions of Section 13 and Section 16 of the Exchange Act. Counterparty shall provide Dealer with an opportunity to review and comment on any filings to be made by Counterparty in connection with the Transaction.
(e)Counterparty has not solicited or arranged for the solicitation of orders to buy Shares in anticipation of or in connection with any sales of Shares that Dealer or an affiliate of Dealer may effect in connection with the Transaction. Except as provided herein, Counterparty has not made and has not arranged for any payment to any person in connection with any sales of Shares that Dealer or an affiliate of Dealer may effect in connection with the Transaction. Counterparty does not know or have any reason to believe that the Issuer has not complied with the reporting requirements contained in Rule 144(c)(1) under the Securities Act. Counterparty will electronically file a Form 144 with the Securities and Exchange Commission (the “SEC”) through the EDGAR system in the manner contemplated by Rule 144 contemporaneously with the execution of this Confirmation and such Form 144 shall be in a form reasonably acceptable to Dealer. Counterparty
(x) has not sold any Shares (or securities convertible into or exchangeable or exercisable for Shares) pursuant to an effective registration statement at any time during the thirty (30) Exchange Business Days prior to or following the Trade Date or any day during the Calculation Period and (y) has not exercised any rights under any registration rights agreement to cause a registration statement to be filed with respect to any Shares (or securities convertible into or exchangeable or exercisable for Shares) at any time during the thirty (30) Exchange Business Days prior to or following the Trade Date or any day during any Calculation Period.
(f)From the date three months prior to the Trade Date to, and including, the Trade Date, neither Counterparty nor any affiliate of Counterparty nor any person who would be considered to
be the same “person” as Counterparty or “act[ing] in concert” with Counterparty (as such terms are used in clauses (a)(2) and (e)(3)(vi) of Rule 144) has sold any Shares or hedged (through swaps, options, short sales or otherwise) any long position in the Shares. For the purposes of this paragraph, Shares shall be deemed to include securities convertible into or exchangeable or exercisable for Shares. If Counterparty were to sell on the Trade Date a number of Shares equal to the Number of Shares, such sales would comply with the volume limitations set forth in paragraph (e) of Rule 144 under the Securities Act.
(g)At all times during the term of the Transaction, except with the prior written consent of GS, Counterparty will not, directly or indirectly (including, without limitation, by means of a derivative instrument), purchase, offer to purchase, place any bid or limit order that would effect a purchase of, or announce or commence any tender offer relating to, any Shares or any security convertible into or exchangeable for the Shares.
(h)Counterparty represents and warrants to Dealer that this Transaction will not violate or contravene any trading or corporate policy of the Issuer applicable to Counterparty or its affiliates, officers and employees, including, but not limited to, the Issuer’s insider trading policy, any stockholders’ agreement, lockup agreement, registration rights agreement, confidentiality agreement, co-sale agreement or any other agreement binding on Counterparty or affecting Counterparty or any of its assets (including, without limitation, the Collateral Shares). Counterparty is not as of the Trade Date, and shall not during the term of the Transaction become, an “affiliated purchaser” (as defined in Rule 10b-18(a)(3)) of Issuer.
(i)Rule 10b5-1 Plan Representations. Counterparty represents, warrants and covenants to Dealer that:
(i)Counterparty is entering into this Confirmation and the Transaction hereunder in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”) or any other insider trading, antifraud or anti-manipulation provisions of the U.S. federal or applicable securities laws of any state or country and that it has not entered into or altered and will not enter into or alter any corresponding or hedging transaction or position with respect to the Shares. Counterparty further agrees to act in good faith with respect to the Transaction.
(ii)Counterparty will not seek to control or influence Dealer’s or its affiliates’ decision to make any “purchases or sales” (within the meaning of Rule 10b5- 1(c)(1)(i)(B)(3) under the Exchange Act) under the Transaction, including, without limitation, Dealer’s decision to enter into any hedging transactions. Counterparty represents and warrants that it has consulted with its own advisors as to the legal aspects of its adoption and implementation of this Confirmation under Rule 10b5-1.
(iii)Counterparty acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation and/or the Transaction hereunder must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c) under the Exchange Act. Without limiting the generality of the foregoing, any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5 under the Exchange Act, and no such amendment, modification, waiver or termination shall be made at any time at which Counterparty or any officer, director, manager or similar person of Counterparty is aware of any material non-public information regarding the Issuer or the Shares.
4.Additional Representations and Agreements.
(a)Each party represents and warrants to the other party that such party (i) is an “eligible contract participant” as such term is defined in the Commodity Exchange Act, as amended, and (ii) is entering into the Transaction as principal and not for the benefit of any third party; and each party acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act by virtue of Section 4(a)(2) thereof. Accordingly, Counterparty represents and warrants that (A) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment, (B) it is an “accredited investor” as that term is defined under Regulation D under the Securities Act, (C) it will purchase the Transaction for investment and not with a view to the distribution or resale thereof in a manner that would violate the Securities Act, and (D) the disposition of the Transaction is restricted under this Confirmation, the Securities Act and state securities laws.
(b)Counterparty represents and warrants to Dealer that:
(i)Counterparty understands that no obligations of Dealer to Counterparty hereunder will be entitled to the benefit of deposit insurance and that such obligations will not be guaranteed by any affiliate of Dealer or any governmental agency.
(ii)Counterparty’s financial condition is such that Counterparty has no need for liquidity with respect to Counterparty’s investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness. Counterparty’s investments in and liabilities in respect of the Transaction, which Counterparty understands are not readily marketable, is not disproportionate to Counterparty’s net worth, and Counterparty is able to bear any loss in connection with the Transaction, including the loss of Counterparty’s entire investment in the Transaction.
(iii)Counterparty is aware and acknowledges that Dealer, its affiliates, agents or any entity with which Dealer hedges the Transaction may from time to time take positions in instruments that are identical or economically related to the Transaction or the Shares or have an investment banking or other commercial relationship with the Issuer; in addition, Counterparty acknowledges that the proprietary trading and other activities and transactions of Dealer, its affiliates, agents or any entity with which Dealer hedges the Transaction, including purchases and sales of the Shares in connection with, or in anticipation of, the Transaction, may affect the trading price of the Shares.
(iv)Counterparty shall promptly provide written notice to Dealer upon obtaining knowledge of the occurrence of any event that would constitute an Event of Default, a Potential Event of Default, a Potential Adjustment Event, any announcement in respect of an Extraordinary Event or potential Extraordinary Event.
(v)Counterparty possesses, has read and understands the terms and provisions of the Agreement, the Credit Support Annex and the Definitions.
(vi)Counterparty is not as of the Trade Date and any date on which any Collateral Shares are delivered to Dealer and shall not be after giving effect to the transactions contemplated hereby, “insolvent” (as such term is defined in Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the United States
Code (the “Bankruptcy Code”)). At the time of any transfer to or for the benefit of Dealer,
Counterparty did not intend or will not intend to incur, and did not incur or will not incur, debts that were beyond the ability of Counterparty to pay as they mature.
(vii)Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. During the term of the Transaction it will not take any action that would cause it to become required to, or otherwise permit Counterparty to become required to, register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(viii)(A) Counterparty is acting for its own account, and it is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or securities; (B) Counterparty has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary, (C) Counterparty is not using any communication (written or oral) of Dealer or any of its agents or affiliates as investment advice or as a recommendation to enter into the Transaction (it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction), (D) no communication (written or oral) received from Dealer or any of its agents or affiliates shall be deemed to be an assurance or guarantee as to the expected results of the Transaction and (E) Counterparty is exercising independent judgment in evaluating the communications (written or oral) of Dealer or any of its agents or affiliates.
(ix)Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to the Transaction hereunder; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) is an “institutional account” as defined in FINRA Rule 4512(c).
(x)Counterparty is not a “financial end user” as defined in 12 C.F.R. §45.2.
(c)Counterparty represents and warrants to Dealer that Counterparty is entering into this Confirmation in good faith and not as part of a plan or scheme to evade compliance with federal securities laws, including, without limitation, the prohibitions on the insider trading, antifraud or manipulative and deceptive devices under the U.S. federal or applicable securities laws of any state or country and that it has not entered into or altered and will not enter into or alter any corresponding or hedging transaction or position with respect to the Shares. Counterparty further agrees to act in good faith with respect to the Transaction.
(d)No state or local (including non-U.S. jurisdictions) law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its agents or affiliates owning or holding (however defined) Shares.
(e)Without the prior written consent of Dealer, Counterparty and its affiliates shall not, at any time during the Transaction, directly or indirectly, enter into any derivative transaction (including, without limitation, a share option transaction, a share forward transaction, a share swap transaction or any structured share purchase or sale transaction) or any other financing transaction or other
arrangement that is secured by, or references or relates to, the Shares (whether such transaction is to be settled by delivery of the Shares, in cash or otherwise) other than the Transaction.
(f)Counterparty acknowledges and agrees that (i) any purchases or sales made by Dealer (or its agents or affiliates) in respect of the Transaction shall be made at Dealer’s or such affiliate’s sole discretion and for Dealer’s (or its agents’ or affiliates’) own account and (ii) Counterparty does not have, and shall not attempt to exercise, any influence over how, when or whether to make such purchases or sales, including, without limitation, the price paid or received per Share pursuant to such purchases or sales or whether such purchases or sales are made on any securities exchange or privately.
(g)Counterparty represents and warrants to Dealer that each of the following has been true with respect to Counterparty from and including the date its certificate of formation was initially filed in the office of the Secretary of State of Delaware on November 25, 2024, expect for paragraph (i) which is true as of the Trade Date, and at all times during the term of the Transaction, Counterparty shall:
(i)have at least one “independent manager” (or any comparable term under and as defined in the Organizational Documents);
(ii)maintain its own separate books and records and establish and maintain bank accounts;
(iii)conduct its business solely in its own name in a manner not misleading to other persons as to its identity and correct any known misunderstanding regarding its separate identity;
(iv)file its own tax returns, if any, as required under applicable law;
(v)hold all of its assets in its own name and not commingle its assets with assets of any other persons, except as may be contemplated or permitted under this Transaction;
(vi)strictly comply with all organizational formalities to maintain its separate existence;
(vii)pay its own liabilities out of its own funds;
(viii)allocate fairly and reasonably any overhead expenses that are shared with an affiliate, including for services performed by an employee of an affiliate;
(ix)not own any assets or carry on any business other than holding the Collateral (as defined in the Security Agreement) and the transactions contemplated by this Transaction;
(x)not have any subsidiaries;
(xi)obtain all licenses, permits, approvals, concessions or other authorizations necessary to the conduct of the business of the Counterparty;
(xii)not incur any indebtedness, liabilities or obligations (whether actual, or contingent, present or future) other than the liabilities and obligations under this Transaction;
(xiii)except for capital contributions and distributions permitted under the terms and conditions of this Confirmation and the Agreement and properly reflected on the
books and records of Counterparty, maintain an arm's length relationship with its affiliates and Parent;
(xiv)not hold out its credit or assets as being available to satisfy the obligations of others;
(xv)use separate stationary, invoices and checks (if any);
(xvi)not pledge its assets to secure the obligations of any other person;
(xvii)maintain adequate capital in light of its contemplated business purpose, transactions and liabilities;
(xviii)not acquire any securities of Parent;
(xix)to the fullest extent permitted by law, engage in any dissolution, liquidation, consolidation, merger, division, asset sale or transfer of ownership interests other than such activities as are expressly permitted pursuant to any provision of this Confirmation or the Agreement;
(xx)not have any employees; and
(xxi)cause the members, officers, agents and other representatives of Counterparty to act at all times with respect to Counterparty consistently and in furtherance of the foregoing (the foregoing provisions in this Section 4(g) and any similar provisions under Counterparty’s Organizational Documents, the “Separateness Provisions”).
(h)As of the Trade Date, it is not in violation of the Amended and Restated Limited Liability Company Agreement of Counterparty, dated as of November 6, 2025 (the “Limited Liability Company Agreement”), or in default in the performance or observance of any material obligation, agreement, covenant or condition, contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties is bound.
(i)During the term of the Transaction, Counterparty will not amend the Limited Liability Company Agreement from the form previously provided to Dealer.
5.Indemnification. Counterparty agrees to indemnify and hold harmless Dealer, its Affiliates and its assignees and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”) from and against any and all commercially reasonable losses, claims, damages and liabilities, joint or several, to which such Indemnified Party may become subject, and relating to or arising out of any breach of any representation, warranty or covenant made by Counterparty under the Agreement or this Confirmation, and will reimburse any Indemnified Party for all commercially reasonable expenses (including commercially reasonable outside counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty. Counterparty shall be relieved from liability under this Section 5 to the extent that such Indemnified Party fails promptly to notify Counterparty of any action commenced against it in respect of which indemnity may be sought hereunder (it being understood that any such notice delivered within 30 calendar days of the commencement of any such action shall be deemed to have been delivered promptly for such purpose), if and to the extent that Counterparty is materially prejudiced by such delayed notification. In addition, Counterparty shall not have liability for any settlement of any proceeding contemplated by this paragraph that is effected without its written consent, such consent not to be unreasonably withheld, but if settled with such consent or if there be a final judgment for the plaintiff,
Counterparty agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such settlement or judgment. Counterparty shall not, without the prior written consent of such Indemnified
Party, such consent not to be unreasonably withheld, effect any settlement of any such proceeding contemplated by this paragraph that is pending or threatened in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceedings on terms reasonably satisfactory to such Indemnified Party. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a non-appealable judgment by a court of competent jurisdiction to have resulted from Dealer’s breach of a material term of this Confirmation or the Agreement, willful misconduct or gross negligence. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law (but only to the extent that such harm was not caused by Dealer’s breach of a material term of this Confirmation, willful misconduct or gross negligence), to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Confirmation or the Agreement except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from the breach of a material term of this Confirmation or the Agreement, or the Indemnified Party’s gross negligence or willful misconduct. The provisions of this Section 5 shall survive completion of the Transaction contemplated by this Confirmation and any assignment and delegation pursuant to Section 7(a) of this Confirmation and shall inure to the benefit of any permitted assignee of Dealer.
6.Acknowledgments.
(a)The parties hereto intend for:
(i)The Transaction to be a “securities contract” as defined in Section 741(7) of the Bankruptcy Code, a “swap agreement” as defined in Section 101(53B) of the Bankruptcy Code and a “forward contract” as defined in Section 101(25) of the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 555, 556, 560 and 561 of the Bankruptcy Code.
(ii)The Agreement to be a “master netting agreement” as defined in Section 101(38A) of the Bankruptcy Code.
(iii)A party’s right to liquidate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code.
(iv)Any cash, securities or other property provided as performance assurance, credit support or collateral with respect to the Transaction to constitute “transfers” made “by or to (or for the benefit of)” a “master netting agreement participant”, a “financial institution”, a “financial participant”, a “forward contract merchant” or a “swap participant”, (each as defined in the Bankruptcy Code) within the meaning of Sections 546(e), 546(f), 546(g) and 546(j) of the Bankruptcy Code.
(v)All payments for, under or in connection with the Transaction, all payments for the Shares and the transfer of such Shares to constitute “transfers” under a “securities contract” defined in the Bankruptcy Code.
(vi)All obligations under or in connection with the Transaction to represent obligations in respect of “termination values”, “payment amounts” or “other
transfer obligations” within the meaning of Section 362 and 561 of the Bankruptcy Code.
(vii)Dealer to be a “swap participant” and a “financial institution” within the meaning of Sections 101(53C) and 101(22) of the Bankruptcy Code.
(b)Counterparty acknowledges that:
(i)During the term of the Transaction, Dealer and its agents or affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to establish, adjust or unwind its hedge position with respect to the Transaction.
(ii)Dealer and its agents or affiliates may also be active in the market for the Shares and derivatives linked to the Shares other than in connection with hedging activities in relation to the Transaction, including acting as agent or as principal and for its own account or on behalf of customers.
(iii)Dealer shall make its own determination as to whether, when or in what manner any hedging or market activities in the Issuer’s securities shall be conducted and shall do so commercially reasonably in good faith, as appropriate to hedge its price and market risk with respect to the Transaction.
(iv)Any market activities of Dealer and its agents or affiliates with respect to the Shares may affect the market price and volatility of the Shares, as well as any Settlement Price, each in a manner that may be adverse to Counterparty.
(v)The Transaction is a derivative transaction; Dealer and its agents or affiliates may purchase or sell Shares for their own account at prices that may be greater than, or less than, the prices paid or received by Counterparty under the terms of the Transaction.
(c)The parties intend for this Confirmation to constitute a “contract” as described in the letter dated December 14, 1999 submitted by Robert W. Reeder and Alan. L. Beller to Michael Hyatte of the staff of the SEC (the “Staff”) to which the Staff responded in an interpretive letter dated December 20, 1999 and the letter dated November 30, 2011 submitted by Robert T. Plesnarski and Glen A. Rae to Thomas Kim of the Staff to which the Staff responded in an interpretive letter dated December 1, 2011 (collectively, the “Interpretive Letters”). Accordingly, Counterparty agrees that any Shares that it delivers to Dealer hereunder will not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof, shall be effected through the facilities of, the DTC. Counterparty believes in good faith, based on advice of its counsel, that the Transaction contemplated hereby and/or under any Credit Support Document is consistent in all material respects with the Interpretive Letters.
7.Other Provisions.
(a)Transfer. Notwithstanding any provision of the Agreement to the contrary, Dealer may assign, transfer and set over all rights, title and interest, powers, privileges and remedies of Dealer under the Transaction (including the Annexes hereto in respect of the Transaction), in whole or part, to an affiliate of Dealer whose obligations hereunder are guaranteed by Dealer without the consent of Counterparty; provided that Dealer may transfer or assign pursuant to this paragraph only if (A) either (i) each of Dealer and the transferee or assignee in any such transfer or assignment is a “dealer in securities” within the meaning of Section 475(c)(1) of the U.S. Internal Revenue Code
of 1986, as amended (the “Code”) or (ii) the transfer or assignment does not otherwise constitute a “deemed
exchange” by Counterparty within the meaning of Section 1001 of the Code, (B) Counterparty will not, as a result of such transfer or assignment, (x) be required to pay the transferee or assignee on any payment date or delivery date an amount under Section 2(d)(i)(4) of the Agreement greater than an amount that Counterparty would have been required to pay Dealer in the absence of such transfer of assignment, or (y) receive from the transferee or assignee on any payment date or delivery date an amount under Section 2(d)(i)(4) of the Agreement less than the amount that Counterparty would have received from Dealer in the absence of such transfer or assignment, except to the extent of any deduction or withholding resulting from a Change in Law occurring after the date of the transfer and/or assignment, (C) the transferee or assignee shall provide Counterparty with a complete and accurate U.S. Internal Revenue Service Form W-9 or W-8 (or successor form), as applicable, and make such Payee Tax Representations and provide such other tax documentation as may be reasonably requested by Counterparty to permit Counterparty to determine that events described in clause (B) of this proviso will not occur upon or after such transfer or assignment, (D) no Event of Default, Potential Event of Default or Termination Event will occur as a result of such transfer and assignment, (E) the transferee agrees in writing with Dealer to be bound by the terms of this Confirmation with respect to the transferred obligations, (F) if to a transferee incorporated or organized in a jurisdiction other than the United States or United Kingdom, after giving effect to such transfer, no material adverse legal or regulatory consequence shall result to Dealer, Counterparty or the transferee as a result of such transfer and (G) Dealer shall have provided prompt written notice to Counterparty of such transfer.
(b)Ownership Limitation. Notwithstanding any other provisions hereof, Dealer shall not be entitled to acquire, receive, vote, exercise any right of rehypothecation hereunder or exercise any other rights in respect of any Collateral Shares to the extent (and only to the extent) that immediately upon giving effect such acquisition, receipt, vote or exercise of such rights, (x) the “beneficial ownership” (within the meaning of Section 13(d) of the Exchange Act) of Dealer and its Affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group” (within the meaning of Section 13 of the Exchange Act) of which Dealer is or may be deemed to be a part, would be equal to or greater than 9.0% of the outstanding Shares or (y) Dealer and its Affiliates under any federal, state or local laws, rules, regulations or regulatory orders or any provisions of the organization documents of the Issuer, or any agreement to which Counterparty or its Affiliate or the Issuer is a party, in each case, applicable to ownership of Shares (“Applicable Restrictions”), would own, beneficially own, constructively own, control, hold the power to vote or otherwise meet a relevant definition of ownership in excess of a number of such Shares equal to: (i) the number of such Shares that would give rise to any reporting or registration obligation or other requirement (except for any filing requirements on Form 13F, Schedule 13D or Schedule 13G under the Exchange Act, in each case, as in effect on the Trade Date) (including obtaining prior approval by any Person or entity) of Dealer and its Affiliates or would result in an adverse effect on Dealer and its Affiliates under any Applicable Restriction, as determined by the Calculation Agent in its reasonable discretion, in each case minus (ii) 1% of the number of the total outstanding relevant Shares (each of paragraphs (x) and (y) above, an “Ownership Limitation”). The inability of Dealer to acquire, receive, vote or exercise rights with respect to any Shares as provided above at any time as a result of an Ownership Limitation shall not preclude Dealer from taking such action at a later time when no such Ownership Limitation is then existing or would result under this Section 7(b). Notwithstanding any other provision of this Confirmation to the contrary, Dealer shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Shares that Dealer is not entitled to acquire or receive, vote or exercise any other rights of Dealer in respect hereof, at any time pursuant to this Section 7(b), until such time as Dealer is not prohibited from acquiring, receiving, voting or exercising such rights in respect thereof under this Section 7(b), and any such acquisition, receipt, vote or exercise of such rights shall be void and have no effect to the extent (but only to the extent) that Dealer is so prohibited.
(c)Alternative Payments and/or Delivery on Early Termination. Upon the occurrence or effective designation of an Early Termination Date in respect of the Transaction or the determination of an amount owed following occurrence of an Extraordinary Event that results in the cancellation
or termination of the Transaction pursuant to Article 12 of the Equity Definitions (any such event, an “Early Termination Event”), if Counterparty would owe any amount to Dealer pursuant to Section 6 of the Agreement or any amount pursuant to Article 12 of the Equity Definitions after giving effect to the Annexes hereto (any such amount, a “Payment Amount”) in respect of such Early Termination Event, Counterparty shall deliver to Dealer the number of Shares with a value equal to the Payment Amount owed by Counterparty (determined by the Calculation Agent). For the avoidance of doubt, in the event that Counterparty does not deliver a number of Shares equal in value to such Payment Amount owing, Counterparty shall continue to owe any remaining Payment Amount.
(d)Netting and Set-off.
(i)If, on any date, a number of securities would be deliverable, or cash would otherwise be payable, by one party (the “first party”) to the other (the “other party”) in respect of the Transaction and a number of securities of the same kind would be deliverable, or cash would otherwise be payable, by the other party to the first party in respect of that Transaction under the Confirmation, the Security Agreement and/or the Credit Support Annex, then, on such date each party’s obligations to deliver such number of securities, or to make such payment, will be automatically satisfied and discharged and, if the aggregate number of such securities, or the aggregate amount of cash, as the case may be, that would otherwise have been deliverable or payable, as applicable, by one party exceed the aggregate number of such securities or the aggregate amount of cash that would otherwise have been deliverable or payable, as applicable, by the other party, replaced by (x) an obligation upon the party by which the larger aggregate number of such securities would have been deliverable to deliver to the other party the excess of the larger aggregate number over the smaller aggregate number or (y) an obligation upon the party by which the larger aggregate amount would have been payable to pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount, as applicable. For the avoidance of doubt, “Multiple Transaction Payment Netting” shall apply for the purpose of Section 2(c) of the Agreement.
(ii)In addition to and without limiting any rights of set-off that a party hereto may have as a matter of law, pursuant to contract or otherwise (including, without limitation, in Section 6(f) of the Agreement), upon the occurrence of an Event of Default or a Termination Event with respect to which Counterparty is a Defaulting Party or an Affected Party (as the case may be), Dealer shall have the right to terminate, liquidate and otherwise close out the Transaction, the Confirmation and any other agreement between Dealer and Counterparty pursuant to the terms hereof and thereof, and to reduce any amount payable by or other obligation of Dealer or its affiliates to Counterparty by its set- off against any amount payable by or other obligation of Counterparty to Dealer, in each case arising under the Agreement, this Confirmation or any other agreement between Dealer and Counterparty (whether matured or contingent and irrespective of the currency, place of payment or place of booking of the obligation). To the extent that such amounts or obligations are set off, such amounts or obligations will be deemed discharged in all respects. Without limiting the generality of the foregoing, in the exercise of its set-off rights as set forth in this paragraph, Dealer may set off or net any obligation that Dealer may have to Counterparty to release from the security interests or return to Counterparty any Collateral pursuant to the terms of the Security Agreement or the Credit Support Annex against any right Dealer may have against Counterparty pursuant to the Agreement, this Confirmation or any other agreement between Dealer and Counterparty, including without limitation any right to receive a payment or delivery pursuant to any provision of the Agreement and this Confirmation. In the case of a set-off or netting of any obligation to release, deliver or pay assets against any right to receive assets of the same type, such obligation and right shall be set off and netted in kind. In the case of a
set-off or netting of any obligation to release, deliver or pay assets against any right to receive assets of any other type, the value of each of such obligation and such right shall be determined by the
Calculation Agent and the result of such set-off or netting shall be that the net obligor shall pay or deliver to the other party an amount of cash or assets, at the net obligor’s option (but subject to Counterparty’s obligation to deliver Shares pursuant to Section 7(c) of this Confirmation), with a value (determined, in the case of a delivery of assets, by the Calculation Agent) equal to that of the net obligation. In determining the value of any obligation to release or deliver any securities or any right to receive any securities, the value at any time of such obligation or right shall be determined by reference to the fair market value of such securities at such time, as determined by the Calculation Agent. If an obligation or right is unascertained at the time of any such set-off or netting, the Calculation Agent may in good faith estimate the amount or value of such obligation or right, in which case set-off or netting will be effected in respect of that estimate, and the relevant party shall account to the other party at the time such obligation or right is ascertained.
(e)Right to Extend. Dealer may postpone, in whole or in part, any Valuation Date or Cash Settlement Payment Date or any other date of valuation or delivery (in which event the Calculation Agent may make appropriate adjustments to the terms of the Transaction) if Dealer determines, in its reasonable discretion (and in the case of clause (ii) below, based on the advice of counsel), that such extension is reasonably necessary or appropriate (i) to preserve Dealer’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions in the cash market, the stock loan market or any other relevant market or (ii) to enable Dealer to effect transactions with respect to Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that is in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Dealer (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer).
(f)Consent to Recording. Each party (i) consents to the recording of the telephone conversations of trading and marketing personnel of the parties and their affiliates in connection with this Confirmation, and (ii) agrees to obtain any necessary consent of, and give notice of such recording to, such personnel of such party and such party’s affiliates.
(g)Severability; Illegality. If compliance by either party with any provision of the Transaction would be unenforceable or illegal, (i) the parties shall negotiate in good faith to resolve such unenforceability or illegality in a manner that preserves the economic benefits of the transactions contemplated hereby and (ii) the other provisions of the Transaction shall not be invalidated, but shall remain in full force and effect.
(h)Waiver. Any provision of this Confirmation may be waived if, and only if, such waiver is in writing and signed by the party against whom the waiver is to be effective.
(i)Governing Law/Jurisdiction. Sections 13(a) and 13(b) of the Agreement are hereby amended by deleting them in their entirety and replacing them with the following:
(i)Governing Law. This Agreement and any non-contractual obligations arising out of or in relation to this Agreement will be governed by and construed in accordance with English law.
(ii)Jurisdiction. With respect to any dispute, claim, difference or controversy arising out of, relating to or having any connection with this Agreement, including any dispute as to its existence, validity, interpretation, performance, breach or termination or the consequences of its nullity and any dispute relating to any non- contractual obligations arising out of or in connection with it (“Proceedings”), each party irrevocably:
A.submits to the exclusive jurisdiction of the English courts; and
B.waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.
(j)Confidentiality. Dealer and Counterparty agree that (i) Counterparty is not obligated to Dealer to keep confidential from any and all persons or otherwise limit the use of any element of Dealer’s descriptions relating to tax aspects of the Transaction hereunder and any part of the structure necessary to understand those tax aspects, and (ii) Dealer does not assert any claim of proprietary ownership in respect of such descriptions contained herein of the use of any entities, plans or arrangements to give rise to significant U.S. federal income tax benefits for Counterparty.
(k)Regulatory Disruption. In the event that Dealer concludes, in its reasonable, good faith discretion and based on the advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Dealer or its affiliates, but provided that such policies or procedures are related to legal, regulatory or self- regulatory issues and are generally applicable in similar situations and applied to the Transaction in a non-discriminatory manner), for it to refrain from or decrease any market activity on any Scheduled Trading Day or Days during the Calculation Period, Dealer may elect to deem that a Market Disruption Event has occurred and will be continuing on such Scheduled Trading Day or Days ( a “Regulatory Disruption”). For the avoidance of doubt, any failure by the Issuer to comply with the reporting requirements contained in Rule 144(c) shall constitute a Regulatory Disruption at the election of Dealer.
8.Wall Street Transparency and Accountability Act of 2010. The parties hereby agree that none of (i) Section 739 of the Wall Street Transparency and Accountability Act of 2010 (the “WSTAA”), (ii) any similar legal certainty provision included in any legislation enacted, or rule or regulation promulgated, on or after the Trade Date, (iii) the enactment of the WSTAA or any regulation under the WSTAA, (iv) any requirement under the WSTAA or (v) any amendment made by the WSTAA shall limit or otherwise impair either party’s otherwise applicable right to terminate, renegotiate, modify, amend or supplement this Confirmation, this Transaction or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased cost, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein or the Agreement (including, but not limited to, any right arising from any Change in Law, Insolvency Filing, Hedging Disruption, Increased Cost of Hedging, Loss of Stock Borrow, Increased Cost of Stock Borrow, or Illegality (as defined in the Agreement)).
9.Addresses for Notice.
(a)If to Dealer:
Goldman Sachs International
Plumtree Court, 25 Shoe Lane, EC4A 4AU Attention: Michael Voris, Equity Capital Markets
Telephone: 212-902-4895 Facsimile: 212-291-5027 Email: Michael.Voris@ny.ibd.email.gs.com
With copies to:
Attention: Jonathan Armstrong, Equity Capital Markets Telephone: 212-902-5181
Email: Jonathan.Armstrong@ny.ibd.email.gs.com
Attention: Cory Oringer, Equity Capital Markets Email: Cory.Oringer@ny.ibd.email.gs.com
Attention: Henry Liu, Equity Capital Markets Telephone: 212-902-4841
Email: Hengrui.Liu@ny.ibd.email.gs.com & Eq-derivs-notifications@am.ibd.gs.com
(b)If to Counterparty:
Nuke Holdings, LLC
Address: 6700 Las Colinas Blvd., Irving, Texas 75039 Attention: Kevin Hammonds, John Regan and Mitchell Stone
E-mail address: Kevin.Hammonds@Fluor.com; John.Regan@fluor.com; Mitchell.Stone@fluor.com
Telephone: 469-398-7142
With a copy to (which will not constitute notice):
Jonathan Whalen
Partner
T: +1 214.698.3196 | M: +1 469.628.0614
JWhalen@gibsondunn.com
GIBSON DUNN
Gibson, Dunn & Crutcher LLP
2001 Ross Avenue Suite 2100, Dallas, TX 75201-2923
10.Accounts for Payment.
(a)To Dealer: Intermediary: JP Morgan Chase Bank, N.A. Routing Code: CHASUS33
Location: New York
Final Beneficiary: Goldman Sachs & Co. LLC Routing Code: GOLDUS33
Account 9301011483
ABA Number: 021000021
(b)To Counterparty: Nuke Holdings, LLC
Bank: Wells Fargo
Account number: 4943931220 Account type: Checking
ACH routing number: 121000248 Wire routing number: 121000248 SWIFT/BIC code: WFBIUS6S
Bank name and address: Wells Fargo Bank, 420 Montgomery Street, San Francisco, CA 94104
11.Delivery Instructions. Unless otherwise directed in writing, any Shares to be delivered hereunder shall be delivered as follows:
(a)To Dealer: DTC Securities: DTC 0005
(b)To Counterparty: To be separately provided
12.Schedule Provisions.
(a)“Specified Transaction” has the meaning set forth in Section 14 of the Agreement.
(b)The “Cross-Default” provisions of Section 5(a)(vi) of the Agreement will apply to Counterparty, with a “Threshold Amount” of USD 0.
(c)The “Automatic Early Termination” provision of Section 6(a) of the Agreement will not apply to Dealer and will not apply to Counterparty.
(d)The “Credit Event Upon Merger” provisions of Section 5(b)(v) of the Agreement will apply to Counterparty.
(e)Each of the following shall be an Additional Termination Event with respect to Counterparty for which Counterparty will be the sole Affected Party, all Transactions under the Agreement shall be Affected Transactions and Dealer shall be the party entitled to designate an Early Termination Date:
(i)the Organizational Documents, including, without limitation, the Separateness Provisions or similar provisions thereunder, are amended at any time on or after the date hereof without prior written notice to Dealer and, in the sole discretion of Dealer, such amendment would materially impact Counterparty’s rights or obligations under the Agreement or this Confirmation; or Counterparty fails to comply with the Organizational Documents or the Separateness Provisions.
(ii)Any legal proceeding shall have been instituted or any other event shall have occurred or condition shall exist that in the reasonable judgment of Dealer could have a material adverse effect on the financial condition of Counterparty or on Counterparty’s ability to perform its obligations hereunder, or that calls into question the validity or binding effect of any agreement of Counterparty hereunder.
(iii)(i) Parent shall (x) fail to perform or observe any term, covenant, condition or agreement in the Parent Agreement, or (y) rescind or purport to rescind or repudiate or purport to repudiate the Parent Agreement in whole or in part or (ii) any representation, warranty, certification or statement of fact made or deemed made by or on behalf of Parent in the Parent Agreement shall be incorrect or misleading in any material respect when made or deemed made.
(f)Part 2(b) of the ISDA Schedule – Payee Representation:
For the purpose of Section 3(f) of the Agreement, Counterparty makes the following representation to Dealer:
Counterparty is a limited liability company that (i) is disregarded as separate from its sole owner, which is treated as a corporation for U.S. federal income tax purposes; (ii) is a
U.S. person (as that term is used in Treasury Regulations Section 1.1441-4(a)(3)(ii)); and (iii) is “exempt” within the meaning of Treasury Regulations Sections 1.6041-3(p) and 1.6049-
4(c), in each case for U.S. federal income tax purposes.
(g)Part 3(a) of the ISDA Schedule – Tax Forms:
Party Required to Deliver Document
| | | | | | | | |
| Form/Document/Certificate | Date by which to be Delivered |
Counterparty | A complete and duly executed | (i) Upon execution and |
| United States Internal Revenue | delivery of this Agreement; (ii) |
| Service Form W-9 (or successor | promptly upon reasonable |
| thereto). | demand by Dealer; and (iii) |
| | promptly upon learning that |
| | any such Form previously |
| | provided by Counterparty has |
| | become obsolete or incorrect. |
(h)Offices.
a.The Office of Dealer for the Transaction is: England.
b.The Office of Counterparty for the Transaction is: Inapplicable. Counterparty is not a Multibranch Party.
13.Withholding Tax. “Withholding Tax” and “Indemnifiable Tax”, as defined in Section 14 of the Agreement, shall not include (i) any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”) or (ii) any tax imposed on amounts treated as dividends from sources within the United States under Section 871(m) of the Code (or any Treasury regulations or other guidance issued thereunder). For the avoidance of doubt, a FATCA Withholding Tax and any tax imposed under Section 871(m) of the Code is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of the Agreement.
14.Amendments to Equity Definitions.
(a)Section 11.2(a) of the Equity Definitions is hereby amended by deleting the words “a diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “a material effect on the relevant Transaction”;
(b)The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction or Share Forward Transaction, then following the announcement or occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has a material effect on the Transaction and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of:’ and the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)” and replacing such latter phrase with the words “(and, for
the avoidance of doubt, adjustments may be made to account solely for changes in volatility, stock loan rate, liquidity relative to the relevant Shares and any taxes that may
be imposed in connection with the Transaction (including any withholding or transfer taxes)”;
(c)Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “diluting or concentrative effect on the theoretical value of the relevant Shares” and replacing them with the words “material effect on the relevant Transaction”;
(d)Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (1) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (2) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) at Dealer’s option, the occurrence of any of the events specified in Section 5(a)(vii) (1) through (9) of the ISDA Master Agreement with respect to that issuer”;
(e)Section 12.9(b)(iv) of the Equity Definitions is hereby amended by (A) deleting (I) subsection (A) in its entirety, (II) the phrase “or (B)” following subsection (A) and (III) the phrase “in each case” in subsection (B); and (B) replacing the phrase “neither the Non- Hedging Party nor the Lending Party lends Shares” with the phrase “such Lending Party does not lend Shares” in the penultimate sentence; and
(f)Section 12.9(b)(v) of the Equity Definitions is hereby amended by deleting clause (X) and the words “or (Y)” in the final sentence.
15.U.S. Resolution Stay Provisions.
(a)Recognition of the U.S. Special Resolution Regimes
(i)In the event that Dealer becomes subject to a proceeding under (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder or (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder (a “U.S. Special Resolution Regime”) the transfer from Dealer of this Confirmation, and any interest and obligation in or under, and any property securing, this Confirmation, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Confirmation, and any interest and obligation in or under, and any property securing, this Confirmation were governed by the laws of the United States or a state of the United States.
(ii)In the event that Dealer or an Affiliate becomes subject to a proceeding under a
U.S. Special Resolution Regime, any Default Rights (as defined in 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable (“Default Right”)) under this Confirmation that may be exercised against Dealer are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Confirmation were governed by the laws of the United States or a state of the United States.
(b)Limitation on Exercise of Certain Default Rights Related to an Affiliate’s Entry Into Insolvency Proceedings. Notwithstanding anything to the contrary in this Confirmation, the parties expressly acknowledge and agree that:
(i)Counterparty shall not be permitted to exercise any Default Right with respect to this Confirmation or any Affiliate Credit Enhancement that is related, directly or indirectly, to an Affiliate of Dealer becoming subject to receivership, insolvency, liquidation, resolution, or similar proceeding (an “Insolvency
Proceeding”), except to the extent that the exercise of such Default Right would be permitted
under the provisions of 12 C.F.R. 252.84, 12 C.F.R. 47.5 or 12 C.F.R. 382.4, as applicable; and
(ii)Nothing in this Confirmation shall prohibit the transfer of any Affiliate Credit Enhancement, any interest or obligation in or under such Affiliate Credit Enhancement, or any property securing such Affiliate Credit Enhancement, to a transferee upon or following an Affiliate of Dealer becoming subject to an Insolvency Proceeding, unless the transfer would result in the Counterparty being the beneficiary of such Affiliate Credit Enhancement in violation of any law applicable to the Counterparty.
(iii)For the purpose of this Section 15(b):
“Affiliate” is defined in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Credit Enhancement” means any credit enhancement or credit support arrangement in support of the obligations of Dealer under or with respect to this Confirmation, including any guarantee, collateral arrangement (including any pledge, charge, mortgage or other security interest in collateral or title transfer arrangement), trust or similar arrangement, letter of credit, transfer of margin or any similar arrangement.
(c)U.S. Protocol. If Counterparty has previously adhered to, or subsequently adheres to, the ISDA 2018 U.S. Resolution Stay Protocol as published by the International Swaps and Derivatives Association, Inc. as of July 31, 2018 (the “ISDA U.S. Protocol”), the terms of such protocol shall be incorporated into and form a part of this Confirmation and the terms of the ISDA U.S. Protocol shall supersede and replace the terms of this section. For purposes of incorporating the ISDA U.S. Protocol, Dealer shall be deemed to be a Regulated Entity, Counterparty shall be deemed to be an Adhering Party, and this Confirmation shall be deemed to be a Protocol Covered Agreement. Capitalized terms used but not defined in this paragraph shall have the meanings given to them in the ISDA U.S. Protocol.
16.Pre-existing In-Scope Agreements. Dealer and Counterparty agree that to the extent there are any outstanding “in-scope QFCs,” as defined in 12 C.F.R. § 252.82(d), that are not excluded under 12 C.F.R. § 252.88, between Dealer and Counterparty that do not otherwise comply with the requirements of 12 C.F.R.
§ 252.2, 252.81–8 (each such agreement, a “Preexisting In-Scope Agreement”), then each such Preexisting In-Scope Agreement is hereby amended to include the foregoing provisions in this section, with references to “this Confirmation” being understood to be references to the applicable Preexisting In-Scope Agreement.
17.Third Party Rights. This Confirmation is not intended and shall not be construed to create any rights in any person other than Counterparty, Dealer and their respective successors and assigns and no other person shall assert any rights as third-party beneficiary hereunder. Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. All the covenants and agreements herein contained by or on behalf of Counterparty and Dealer shall bind, and inure to the benefit of, their respective successors and assigns whether so expressed or not.
18.Designation by Dealer. Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to sell or deliver any Shares or other securities to Counterparty, Dealer may designate any of its affiliates to sell or deliver such shares or other securities and otherwise to perform Dealer’s
obligations in respect of the Transaction hereunder and any such designee may assume such obligations. Dealer shall be discharged of its obligations to Counterparty to the extent of any such performance.
19.Process Agent. On or promptly following the date hereof, Counterparty shall have appointed a Process Agent in England and provided Dealer with the name and contact information for such Process Agent in writing (electronic mail being sufficient). Counterparty agrees that the process by which any Proceedings are commenced in England pursuant to Section 7(i) of this Confirmation may be served on it by being delivered to its Process Agent to the address mentioned above or, if different, to Counterparty’s Process Agent’s registered office in England for the time being. Such service shall be deemed completed and effective on delivery to such process agent (whether or not it is forwarded to and received by Counterparty). If such person is not or ceases to be effectively appointed to accept service of process on behalf of Counterparty, Counterparty shall, on Dealer’s written demand, appoint a further person in England to accept service of process on Counterparty’s behalf and, failing such appointment within 14 calendar days, Dealer shall be entitled to appoint such a person (at Counterparty’s expense) by written notice to Counterparty. Nothing in this provision shall affect Dealer’s right to serve process in any other manner permitted by law.
20.ISDA 2020 UK EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol. Both parties agree that the amendments set out in the attachment to the ISDA 2020 UK EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol published by ISDA on 17 December 2020 and available on the ISDA website (www.isda.org) (the “UK PDD Protocol”) shall be incorporated as if set out in full in the Agreement, but with the following amendments: (i) the definition of “Adherence Letter” shall be deemed to be deleted and references to “Adherence Letter” shall be deemed to be to this Section
20 (and references to “such party’s Adherence Letter” and “its Adherence Letter” shall be read accordingly), (ii) references to “adheres to the Protocol” shall be deemed to be “enters into the Agreement”,
(iii) references to “Protocol Covered Agreement” shall be deemed to be references to the Agreement (and each “Protocol Covered Agreement” shall be read accordingly), and (iv) references to “Implementation Date” shall be deemed to be references to the date of the Agreement. For the purposes of this paragraph:
(a)Portfolio reconciliation process status. Each party confirms its status as follows:
Dealer: Portfolio Data Sending Entity Counterparty: Portfolio Data Receiving Entity
(b)Local Business Days. Each party specifies the following place(s) for the purposes of the definition of Local Business Day as it applies to it:
Dealer: New York, New York, USA
Counterparty: New York, New York, USA
(c)Notice. Unless otherwise agreed between the parties in writing:
(i)Dealer agrees to deliver the following items to Counterparty at the contact details shown below:
Portfolio Data, Notice of a discrepancy, Dispute Notice: As specified in Section 9 of this Confirmation.
(ii)Counterparty agrees to deliver the following items to Dealer at the contact details shown below:
Notice of a discrepancy: portfolio.reconcilation@gs.com Dispute Notice: portfolio.reconcilation@gs.com
(iii)Any notice given by email in accordance with this Section 20 will be deemed effective.
(d)Use of an agent and third party service provider. For the purposes of Part I(3) of the UK PDD Protocol: Without prejudice to Part I(3)(a) of the UK PDD Protocol, Dealer appoints Goldman Sachs Services Private Limited, Goldman Sachs & Co. LLC and Goldman Sachs (Singapore) Pte to each act as its agent.
21.ISDA 2013 EMIR Non-Financial Counterparty (NFC) Representation. Counterparty represents to Dealer that it is a non-financial counterparty under Article 2(9) of UK EMIR that does not meet the conditions set out in the second subparagraph of Article 10(1) of UK EMIR. In this paragraph, “UK EMIR” means Regulation (EU) No 648/2012 (as amended and/or supplemented prior to 1 January 2021, including, for the avoidance of doubt, by Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 2019) as assimilated into domestic law of the United Kingdom by virtue of the Retained EU Law (Revocation and Reform) Act 2023.
22.Additional Provisions.
(a)Counterparty understands and agrees that, as a broker-dealer registered with the Securities and Exchange Commission, GS&Co., as agent of Dealer and Counterparty, will be responsible for (a) effecting the Transaction entered into by Dealer and Counterparty hereunder, (b) issuing all required confirmations and statements to Dealer and Counterparty, (c) maintaining books and records relating to the Transaction entered into hereunder as required by Securities and Exchange Commission regulations and (d) receiving, delivering and safeguarding Counterparty’s funds and any securities in connection with the Transaction entered into hereunder, in compliance with Securities and Exchange Commission regulations.
(b)Counterparty understands and agrees that GS&Co. is acting solely in its capacity as agent for Counterparty and Dealer pursuant to instructions from Counterparty and Dealer. GS&Co. shall have no responsibility or personal liability to either party arising from any failure by either party to pay or perform any obligation under the Transaction. Each party agrees to proceed solely against the other to collect or recover any amount owing to it or enforce any of its rights in connection with or as a result of the Transaction.
(c)Notwithstanding the above, for purposes of applicable rules of The Prudential Regulation Authority and the Financial Conduct Authority, Dealer shall treat GS&Co. alone as its customer. As a consequence, most of the customer protections available under such rules will not be available to Counterparty.
(d)Notwithstanding any provisions of the Agreement, all communications relating to the Transaction or the Agreement shall be transmitted exclusively through GS&Co. at 200 West Street, New York, New York 10282-2198, Telephone No. (212) 902-1981, Facsimile No. (212) 428-1980/1983, Email: jonathan.armstrong@gs.com; Cory.Oringer@gs.com; hengrui.liu@gs.com; Eq-derivs-notifications@am.ibd.gs.com.
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Yours sincerely,
GOLDMAN SACHS INTERNATIONAL
By:/s/ David Sprake
Name:David Sprake
Title: Managing Director
GOLDMAN SACHS & CO. LLC
as Custodian
By: /s/ Jonathan Armstrong
Name: Jonathan Armstrong
Title: Managing Director
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[Signature Page to Master Confirmation] |
Confirmed as of the date first above written:
NUKE HOLDINGS, LLC
By: /s/ John Regan
Name: John C. Regan
Title: Designated Manager
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[Signature Page to Master Confirmation] |