Exhibit 3.1

 

CERTIFICATE OF INCORPORATION

OF

X-ENERGY, INC.

 

FIRST: The name of the corporation is X-Energy, Inc. (the “Corporation”).

 

SECOND: The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, County of New Castle, Wilmington, Delaware, 19808, and the name of its registered agent at such address is Corporation Service Company.

 

THIRD: The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (“DGCL”), or any successor statute.

 

FOURTH: The total number of shares of all classes of stock that the Corporation shall have authority to issue is 1000 shares of common stock, each with a par value of $0.0001 per share. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

FIFTH: The name and mailing address of the sole incorporator is as follows:

 

NAME	MAILING ADDRESS
Steven L. Miller	530 Gaither Road, Suite 700 Rockville, Maryland 20850

 

SIXTH: In furtherance of and not in limitation of powers conferred by statute, it is further provided:

 

1.            The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

 

2.             Election of directors need not be by written ballot unless the bylaws of the Corporation shall so provide.

 

3.            The Board of Directors is expressly authorized to adopt, amend, alter or repeal the bylaws of the Corporation.

 

SEVENTH: Except to the extent that the DGCL prohibits the elimination or limitation of liability of directors for breaches of fiduciary duty, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability. No amendment to or repeal of this provision shall apply to or have any effect on the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment or repeal.

 

 

EIGHTH: To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which applicable law permits the Corporation to provide indemnification) through bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise. Any repeal or modification of this provision shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

 

NINTH: Subject to such limitations as may be from time to time imposed by other provisions of this Certificate of Incorporation, by the bylaws of the Corporation, by the DGCL or other applicable law, or by any contract or agreement to which the Corporation is or may become a party, the Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred upon stockholders herein are granted subject to this express reservation.

 

TENTH: Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery in the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the DGCL or the Corporation’s certificate of incorporation or bylaws or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. If any provision or provisions of this Article Tenth shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article Tenth (including, without limitation, each portion of any sentence of this Article Tenth containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby.

 

ELEVENTH: Unless the Corporation consents in writing to the selection of an alternate forum, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended.  Any person or entity purchasing or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to this Article Eleventh.

 

EXECUTED on September 16, 2025.

 

	/s/ Steven L. Miller
	Steven L. Miller, Sole Incorporator

 

 

 

Exhibit 3.2

 

BYLAWS

 

OF

 

X-ENERGY, INC.

 

As effective on September 16, 2025

 

 

BYLAWS

 

OF

 

X-ENERGY, INC.

 

____________________________________________________________

 

ARTICLE I

 

Meetings of Stockholders

 

Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of stockholders shall be held for the election of directors at such date, time and place, if any, either within or without the State of Delaware, as may be designated by resolution of the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting. The Board of Directors may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors.

 

Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors, but such special meetings may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. The Board of Directors may postpone, reschedule or cancel any special meeting of stockholders previously scheduled by the Board of Directors.

 

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting shall be given that shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the certificate of incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at the meeting as of the record date for determining the stockholders entitled to notice of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the corporation.

 

 

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may adjourn from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting.

 

Section 1.5. Quorum. Except as otherwise provided by law, the certificate of incorporation or these bylaws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum, the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend. Shares of its own stock belonging to the corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the corporation or any subsidiary of the corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

 

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in his or her absence by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect. All other elections and questions presented to the stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the certificate of incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the corporation, or applicable law or pursuant to any regulation applicable to the corporation or its securities, be decided by the affirmative vote of the holders of a majority in voting power of the shares of stock of the corporation which are present in person or by proxy and entitled to vote thereon.

 

 

Section 1.8. Fixing Date for Determination of Stockholders of Record.

 

(a)            In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

 

(b)            In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which shall not be more than sixty (60) days prior to such other action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

(c)            Unless otherwise restricted by the certificate of incorporation, in order that the corporation may determine the stockholders entitled to express consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting is fixed by the Board of Directors, (i) when no prior action of the Board of Directors is required by law, the record date for such purpose shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the corporation in accordance with applicable law, and (ii) if prior action by the Board of Directors is required by law, the record date for such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

 

Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting or (ii) during ordinary business hours at the principal place of business of the corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of stockholders.

 

Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted by the certificate of incorporation, any action required or permitted to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall, to the extent required by law, be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation.

 

 

Section 1.11. Inspectors of Election. The corporation may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

 

Section 1.12. Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the presiding person of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board of Directors or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

 

ARTICLE II

 

Board of Directors

 

Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board of Directors. Directors need not be stockholders.

 

Section 2.2. Election; Resignation; Vacancies. The Board of Directors shall initially consist of the persons named as directors in the certificate of incorporation or elected by the incorporator of the corporation, and each director so elected shall hold office until the first annual meeting of stockholders or until his or her successor is duly elected and qualified. At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders shall elect directors each of whom shall hold office for a term of one year or until his or her successor is duly elected and qualified, subject to such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the corporation. Unless otherwise provided by law or the certificate of incorporation, any newly created directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a majority of the remaining members of the Board of Directors, although such majority is less than a quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified.

 

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board of Directors may from time to time determine.

 

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the President, any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting at least twenty-four hours before the special meeting.

 

Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

 

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors the directors entitled to cast a majority of the votes of the whole Board of Directors shall constitute a quorum for the transaction of business. Except in cases in which the certificate of incorporation, these bylaws or applicable law otherwise provides, a majority of the votes entitled to be cast by the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

 

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if any, or in his or her absence by the President, or in their absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

 

Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the board or committee in accordance with applicable law.

 

ARTICLE III

 

Committees

 

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it.

 

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.

 

ARTICLE IV

 

Officers

 

Section 4.1. Officers; Election; Qualifications; Term of Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall from time to time deem necessary or desirable. Each such officer shall hold office until the first meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or her election, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the corporation. The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the corporation. Any number of offices may be held by the same person. Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of the term by the Board of Directors at any regular or special meeting.

 

 

Section 4.2. Powers and Duties of Officers. The officers of the corporation shall have such powers and duties in the management of the corporation as may be prescribed in a resolution by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subject to the control of the Board of Directors. The Board of Directors may require any officer, agent or employee to give security for the faithful performance of his or her duties.

 

Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the President or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the votes which the corporation may be entitled to cast as the holder of stock or other securities in any other corporation or other entity, any of whose stock or other securities may be held by the corporation, at meetings of the holders of the stock or other securities of such other corporation or other entity, or to consent in writing, in the name of the corporation as such holder, to any action by such other corporation or other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consents, and may execute or cause to be executed in the name and on behalf of the corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper. Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may also be exercised directly by the Chairperson of the Board, the President or the Vice President.

 

ARTICLE V

 

Stock

 

Section 5.1. Certificates. The shares of the corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by or in the name of the corporation by the Chairperson or Vice Chairperson of the Board of Directors, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation. Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.

 

 

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the corporation an affidavit of loss or destruction and/or a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

 

ARTICLE VI

 

Indemnification and Advancement of Expenses

 

Section 6.1. Right to Indemnification. The corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided in Section 6.3, the corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors of the corporation.

 

Section 6.2. Advancement of Expenses. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VI or otherwise.

 

Section 6.3. Claims. If a claim for indemnification under this Article VI (following the final disposition of such proceeding) is not paid in full within sixty days after the corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this Article VI is not paid in full within thirty days after the corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, the corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

 

Section 6.4. Nonexclusivity of Rights. The rights conferred on any Covered Person by this Article VI shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.5. Other Sources. The corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 6.6. Insurance. The Board of Directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the provisions of this Article VI; and (b) to indemnify or insure directors, officers and employees against liability in instances in which they may not otherwise be indemnified by the Corporation under the provisions of this Article VI.

 

Section 6.7. Amendment or Repeal. Any right to indemnification or to advancement of expenses of any Covered Person arising hereunder shall not be eliminated or impaired by an amendment to or repeal of these bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or proceeding for which indemnification or advancement of expenses is sought.

 

Section 6.8. Other Indemnification and Advancement of Expenses. This Article VI shall not limit the right of the corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

 

 

ARTICLE VII

 

Miscellaneous

 

Section 7.1. Fiscal Year. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

 

Section 7.2. Seal. The corporate seal shall have the name of the corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.

 

Section 7.3. Manner of Notice. Except as otherwise provided herein or permitted by applicable law, notices to directors and stockholders shall be in writing and delivered personally or mailed to the directors or stockholders at their addresses appearing on the books of the corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, and except as prohibited by applicable law, any notice to stockholders given by the corporation under any provision of applicable law, the certificate of incorporation, or these bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the corporation. Any stockholder who fails to object in writing to the corporation, within 60 days of having been given written notice by the corporation of its intention to send the single notice permitted under this Section 7.3, shall be deemed to have consented to receiving such single written notice. Notice to directors may be given by telecopier, telephone or other means of electronic transmission.

 

Section 7.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

 

Section 7.5. Form of Records. Any records maintained by the corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time, which records shall be conclusive and binding for all purposes absent manifest error.

 

 

Exhibit 10.1

 

X-ENERGY, inc.

2026 EQUITY INCENTIVE PLAN

 

ARTICLE I.
Purpose

 

The Plan’s purpose is to enhance the Company’s ability to attract, retain and motivate persons who make (or are expected to make) important contributions to the Company and X-Energy Reactor Company, LLC (the “Operating Company”) by providing these individuals with equity ownership opportunities and/or equity-linked compensatory opportunities. Capitalized terms used in the Plan are defined in Article XI.

 

ARTICLE II.
Eligibility

 

Service Providers are eligible to be granted Awards under the Plan, subject to the limitations described herein.

 

ARTICLE III.
Administration and Delegation

 

3.1            Administration. The Plan is administered by the Administrator. The Administrator has authority to determine which Service Providers receive Awards, grant Awards and set Award terms and conditions, subject to the conditions and limitations in the Plan. The Administrator also has the authority to take all actions and make all determinations under the Plan, to interpret the Plan and Award Agreements and to adopt, amend and repeal Plan administrative rules, guidelines and practices as it deems advisable. The Administrator may correct defects and ambiguities, supply omissions and reconcile inconsistencies in the Plan or any Award Agreement as it deems necessary or appropriate to administer the Plan and any Awards. The Administrator’s determinations under the Plan are in its sole discretion and will be final and binding on all persons having or claiming any interest in the Plan or any Award.

 

3.2            Appointment of Committees. To the extent Applicable Laws permit, the Board or the Administrator may delegate any or all of its powers under the Plan to one or more Committees or committees of officers of the Company or any of its Subsidiaries. The Board or the Administrator, as applicable, may rescind any such delegation, abolish any such committee or Committee and/or re-vest in itself any previously delegated authority at any time.

 

ARTICLE IV.
Stock Available for Awards

 

4.1            Number of Shares. Subject to adjustment under Article VIII and the terms of this Article IV, the maximum number of Shares that may be issued pursuant to Awards under the Plan shall be equal to the Overall Share Limit. Shares issued under the Plan may consist of authorized but unissued Shares, Shares purchased on the open market or treasury Shares. Shares issued under the Plan will be shares of Class A Common Stock.

 

 

4.2            Share Recycling. If all or any part of an Award expires, lapses or is terminated, exchanged for or settled in cash, surrendered, repurchased, canceled without having been fully exercised or forfeited, in any case, in a manner that results in the Company acquiring Shares covered by the Award at a price not greater than the price (as adjusted to reflect any Equity Restructuring) paid by the Participant for such Shares or not issuing any Shares covered by the Award, the unused Shares covered by the Award will, as applicable, become or again be available for Award grants under the Plan. Further, Shares delivered (either by actual delivery or attestation) to the Company by a Participant to satisfy the applicable exercise or purchase price of an Award and/or to satisfy any applicable tax withholding obligation with respect to an Award (including Shares retained by the Company from the Award being exercised or purchased and/or creating the tax obligation) will, as applicable, become or again be available for Award grants under the Plan. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not count against the Overall Share Limit. Notwithstanding anything to the contrary contained herein, the following Shares shall not be added to the Shares authorized for grant under Section 4.1 and shall not be available for future grants of Awards: (a) Shares subject to a Stock Appreciation Right that are not issued in connection with the stock settlement of the Stock Appreciation Right on exercise thereof; and (b) Shares purchased on the open market with the cash proceeds from the exercise of Options. Further notwithstanding anything to the contrary contained herein, no Shares shall again be available for future grants of Awards under the Plan pursuant to this Article IV to the extent that such return of shares would cause the Plan to be a “formula” plan or constitute a “material revision” or “material amendment” subject to stockholder approval under the requirements of the established stock exchange on which the Company’s securities are traded.

 

4.3            Incentive Stock Option Limitations. Notwithstanding anything to the contrary herein, no more than 100,000,000 Shares may be issued pursuant to the exercise of Incentive Stock Options.

 

4.4            Substitute Awards. In connection with an entity’s merger or consolidation with the Company or the Company’s acquisition of an entity’s property or stock, the Administrator may grant Awards in substitution for any options or other stock or stock-based awards granted before such merger or consolidation by such entity or its affiliate. Substitute Awards may be granted on such terms as the Administrator deems appropriate, notwithstanding limitations on Awards in the Plan. Substitute Awards will not count against the Overall Share Limit (nor shall Shares subject to a Substitute Award be added to the Shares available for Awards under the Plan as provided above), except that Shares acquired by exercise of substitute Incentive Stock Options will count against the maximum number of Shares that may be issued pursuant to the exercise of Incentive Stock Options under the Plan. Additionally, in the event that a company acquired by the Company or any of its Affiliates or with which the Company or any of its Affiliates combines has shares available under a pre-existing plan approved by stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan (and Shares subject to such Awards shall not be added to the Shares available for Awards under the Plan as provided above); provided that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not Employees, Consultants or Directors prior to such acquisition or combination.

 

 

4.5            Non-Employee Director Compensation. Notwithstanding any provision to the contrary in the Plan, the Administrator may establish compensation for non-employee Directors from time to time, subject to the limitations in the Plan. The Administrator will from time to time determine the terms, conditions and amounts of all such non-employee Director compensation in its discretion and pursuant to the exercise of its business judgment, taking into account such factors, circumstances and considerations as it shall deem relevant from time to time, provided that, commencing with the calendar year following the calendar year in which the Effective Date occurs, the sum of any cash compensation, or other compensation, and the value (determined as of the grant date in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, or any successor thereto) of Awards granted to a non-employee Director as compensation for services as a non-employee Director with respect to any fiscal year of the Company may not exceed $750,000 (increased to $1,000,000 in a non-employee Director’s initial calendar year of service as a non-employee director or any calendar year during which a non-employee Director serves as chair of the Board), which limits shall not apply to the compensation for any non-employee Director of the Company who serves in any capacity in addition to that of a non-employee Director for which he or she receives additional compensation. The Administrator may make exceptions to this limit for individual non-employee Directors in extraordinary circumstances, as the Administrator may determine in its discretion, provided that the non-employee Director receiving such additional compensation may not participate in the decision to award such compensation or in other contemporaneous compensation decisions involving non-employee Directors.

 

ARTICLE V.
Stock Options and Stock Appreciation Rights

 

5.1            General. The Administrator may grant Options or Stock Appreciation Rights to Service Providers subject to the limitations in the Plan, including any limitations in the Plan that apply to Incentive Stock Options. A Stock Appreciation Right will entitle the Participant (or other person entitled to exercise the Stock Appreciation Right) to receive from the Company upon exercise of the exercisable portion of the Stock Appreciation Right an amount determined by multiplying the excess, if any, of the Fair Market Value of one Share on the date of exercise over the exercise price per Share of the Stock Appreciation Right by the number of Shares with respect to which the Stock Appreciation Right is exercised. Such amount shall be subject to any limitations of the Plan or that the Administrator may impose and payable in cash, Shares valued at Fair Market Value or a combination of the two as the Administrator may determine or provide in the Award Agreement.

 

5.2            Exercise Price. The Administrator will establish each Option’s and Stock Appreciation Right’s exercise price and specify the exercise price in the Award Agreement. The exercise price will not be less than 100% of the Fair Market Value on the grant date of the Option (subject to Section 5.6) or Stock Appreciation Right. Notwithstanding the foregoing, in the case of an Option or a Stock Appreciation Right that is a Substitute Award, the exercise price per share of the Shares subject to such Option or Stock Appreciation Right, as applicable, may be less than the Fair Market Value per share on the date of grant; provided that the exercise price of any Substitute Award shall be determined in accordance with the applicable requirements of Sections 424 and 409A of the Code.

 

5.3            Duration. Each Option or Stock Appreciation Right will be exercisable at such times and as specified in the Award Agreement, provided that, subject to Section 5.6, the term of an Option or Stock Appreciation Right will not exceed ten years. Notwithstanding the foregoing and unless determined otherwise by the Company, in the event that on the last business day of the term of an Option or Stock Appreciation Right (other than an Incentive Stock Option) (i) the exercise of the Option or Stock Appreciation Right is prohibited by Applicable Law, as determined by the Company, or (ii) Shares may not be purchased or sold by the applicable Participant due to any Company insider trading policy (including blackout periods) or a “lock-up” agreement undertaken in connection with an issuance of securities by the Company, the term of the Option or Stock Appreciation Right shall be extended until the date that is 30 days after the end of the legal prohibition, black-out period or lock-up agreement, as determined by the Company; provided, however, in no event shall the extension last beyond the ten year term of the applicable Option or Stock Appreciation Right. Notwithstanding the foregoing, to the extent permitted under Applicable Laws, if the Participant, prior to the end of the term of an Option or Stock Appreciation Right, violates the non-competition, non-solicitation, confidentiality or other similar restrictive covenant provisions of any employment contract, confidentiality and nondisclosure agreement or other agreement between the Participant and the Company, the Operating Company or any of their respective Subsidiaries or affiliates, the right of the Participant and the Participant’s transferees to exercise any Option or Stock Appreciation Right issued to the Participant shall terminate immediately upon such violation, unless the Company otherwise determines.

 

 

5.4            Exercise. Options and Stock Appreciation Rights may be exercised by delivering to the Company a written notice of exercise, in a form the Administrator approves (which may be electronic), signed by the person authorized to exercise the Option or Stock Appreciation Right, together with, as applicable, payment in full (i) as specified in Section 5.5 for the number of Shares for which the Award is exercised and (ii) as specified in Section 9.5 for any applicable taxes. Unless the Administrator otherwise determines, an Option or Stock Appreciation Right may not be exercised for a fraction of a Share.

 

5.5            Payment Upon Exercise. Subject to Sections 9.10 and 10.8, any Company insider trading policy (including blackout periods) and Applicable Laws, the exercise price of an Option must be paid by:

 

(a)            cash, wire transfer of immediately available funds or by check payable to the order of the Company, provided that the Company may limit the use of one of the foregoing payment forms if one or more of the payment forms below is permitted;

 

(b)            if there is a public market for Shares at the time of exercise, unless the Company otherwise determines, (i) delivery (including electronically or telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to pay the exercise price, or (ii) the Participant’s delivery to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to pay the exercise price; provided that such amount is paid to the Company at such time as may be required by the Administrator;

 

(c)            to the extent permitted by the Administrator, delivery (either by actual delivery or attestation) of Shares owned by the Participant valued at their Fair Market Value;

 

(d)            to the extent permitted by the Administrator, surrendering Shares then issuable upon the Option’s exercise valued at their Fair Market Value on the exercise date;

 

(e)            to the extent permitted by the Administrator, delivery of a promissory note or any other property that the Administrator determines is good and valuable consideration; or

 

(f)            to the extent permitted by the Company, any combination of the above payment forms approved by the Administrator.

 

5.6            Additional Terms of Incentive Stock Options. The Administrator may grant Incentive Stock Options only to employees of the Company, any of its present or future parent or subsidiary corporations, as defined in Sections 424(e) or (f) of the Code, respectively, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code. If an Incentive Stock Option is granted to a Greater Than 10% Stockholder, the exercise price will not be less than 110% of the Fair Market Value on the Option’s grant date, and the term of the Option will not exceed five years. All Incentive Stock Options will be subject to and construed consistently with Section 422 of the Code. By accepting an Incentive Stock Option, the Participant agrees to give prompt notice to the Company of dispositions or other transfers (other than in connection with a Change in Control) of Shares acquired under the Option made within (i) two years from the grant date of the Option or (ii) one year after the transfer of such Shares to the Participant, specifying the date of the disposition or other transfer and the amount the Participant realized, in cash, other property, assumption of indebtedness or other consideration, in such disposition or other transfer. Neither the Company nor the Administrator will be liable to a Participant, or any other party, if an Incentive Stock Option fails or ceases to qualify as an “incentive stock option” under Section 422 of the Code. Any Incentive Stock Option or portion thereof that fails to qualify as an “incentive stock option” under Section 422 of the Code for any reason, including becoming exercisable with respect to Shares having a fair market value exceeding the $100,000 limitation under Treasury Regulation Section 1.422-4, will be a Non-Qualified Stock Option.

 

 

ARTICLE VI.
Restricted Stock; Restricted Stock Units

 

6.1            General. The Administrator may grant Restricted Stock, or the right to purchase Restricted Stock, to any Service Provider, subject to the Company’s right to repurchase all or part of such Shares at their issue price or other stated or formula price from the Participant (or to require forfeiture of such Shares) if conditions the Administrator specifies in the Award Agreement are not satisfied before the end of the applicable restriction period or periods that the Administrator establishes for such Award. In addition, the Administrator may grant to Service Providers Restricted Stock Units, which may be subject to vesting and forfeiture conditions during the applicable restriction period or periods, as set forth in an Award Agreement.

 

6.2            Restricted Stock.

 

(a)            Dividends. Subject to the terms of this Section 6.2(a), Participants holding Shares of Restricted Stock will be entitled to all ordinary cash dividends paid with respect to such Shares, unless the Administrator provides otherwise in the Award Agreement. In addition, unless the Administrator provides otherwise, if any dividends or distributions are paid in Shares, or consist of a dividend or distribution to holders of Common Stock of property other than an ordinary cash dividend, the Shares or other property will be subject to the same restrictions on transferability and forfeitability as the Shares of Restricted Stock with respect to which they were paid. Notwithstanding anything to the contrary herein, with respect to any award of Restricted Stock, dividends which are paid to holders of Common Stock prior to vesting shall only be paid out to a Participant holding such Restricted Stock to the extent that the vesting conditions are subsequently satisfied. All such dividend payments will be made no later than March 15 of the calendar year following the calendar year in which the right to the dividend payment becomes nonforfeitable.

 

(b)            Stock Certificates. The Company may require that the Participant deposit in escrow with the Company (or its designee) any stock certificates issued in respect of Shares of Restricted Stock, together with a stock power endorsed in blank.

 

6.3            Restricted Stock Units.

 

(a)            Settlement. The Administrator may provide that settlement of Restricted Stock Units will occur upon or as soon as reasonably practicable after the Restricted Stock Units vest or will instead be deferred, on a mandatory basis or at the Participant’s election, in a manner intended to comply with Section 409A.

 

(b)            Stockholder Rights. A Participant will have no rights of a stockholder with respect to Shares subject to any Restricted Stock Unit unless and until the Shares are delivered in settlement of the Restricted Stock Unit.

 

 

ARTICLE VII.
Other Stock or Cash Based Awards; DIVIDEND EQUIVALENTS

 

7.1            Other Stock or Cash Based Awards. Other Stock or Cash Based Awards may be granted to Participants, including Awards entitling Participants to receive Shares to be delivered in the future and including annual or other periodic or long-term cash bonus awards (whether based on specified Performance Criteria or otherwise), in each case subject to any conditions and limitations in the Plan. Such Other Stock or Cash Based Awards will also be available as a payment form in the settlement of other Awards, as standalone payments and as payment in lieu of compensation to which a Participant is otherwise entitled. Other Stock or Cash Based Awards may be paid in Shares, cash or other property, as the Administrator determines.

 

7.2            Dividend Equivalents. A grant of Restricted Stock Units or Other Stock or Cash Based Award may provide a Participant with the right to receive Dividend Equivalents, and no Dividend Equivalents shall be payable with respect to Options or Stock Appreciation Rights. Dividend Equivalents may be paid currently or credited to an account for the Participant, settled in cash or Shares and subject to the same restrictions on transferability and forfeitability as the Award with respect to which the Dividend Equivalents are paid and subject to other terms and conditions as set forth in the Award Agreement. Notwithstanding anything to the contrary herein, Dividend Equivalents with respect to an Award shall only be paid out to a Participant to the extent that the vesting conditions are subsequently satisfied. All such Dividend Equivalent payments will be made no later than March 15 of the calendar year following the calendar year in which the right to the Dividend Equivalent payment becomes nonforfeitable, unless determined otherwise by the Administrator or unless deferred in a manner intended to comply with Section 409A.

 

ARTICLE VIII.
Adjustments for Changes in Common Stock
and Certain Other Events

 

8.1            Equity Restructuring. In connection with any Equity Restructuring, notwithstanding anything to the contrary in this Article VIII, the Administrator will equitably adjust each outstanding Award as it deems appropriate to reflect the Equity Restructuring, which may include (if applicable) adjusting the number and type of securities subject to each outstanding Award, adjusting the Award’s exercise price, grant price and/or applicable performance goals, granting new Awards to Participants, and/or making a cash payment to Participants. The adjustments provided under this Section 8.1 will be nondiscretionary and final and binding on the affected Participant and the Company; provided that the Administrator will determine whether an adjustment is equitable.

 

8.2            Corporate Transactions. In the event of any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), reorganization, merger, consolidation, combination, amalgamation, repurchase, recapitalization, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Common Stock or other securities of the Company, Change in Control, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, other similar corporate transaction or event, other unusual or nonrecurring transaction or event affecting the Company or its financial statements or any change in any Applicable Laws or accounting principles, the Administrator, on such terms and conditions as it deems appropriate, either by the terms of the Award or by action taken in connection with the occurrence of such transaction or event (any action to give effect to a change in Applicable Law or accounting principles may be made within a reasonable period of time after such change), is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to (x) prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the Plan or with respect to any Award granted or issued under the Plan, (y) to facilitate such transaction or event or (z) give effect to such changes in Applicable Laws or accounting principles:

 

(a)            To provide for the cancellation of any such Award in exchange for either an amount of cash or other property with a value equal to the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights under the vested portion of such Award, as applicable; provided that, if the amount that could have been obtained upon the exercise or settlement of the vested portion of such Award or realization of the Participant’s rights, in any case, is equal to or less than zero, then the Award may be terminated without payment; provided, further, that Awards held by members of the Board will be deemed settled in Shares on or immediately prior to the applicable event if the Administrator takes action under this clause (a);

 

 

(b)            To provide that such Award shall vest and, to the extent applicable, be exercisable as to all Shares covered thereby, notwithstanding anything to the contrary in the Plan or the provisions of such Award;

 

(c)            To provide that such Award be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, or equivalent value thereof in cash, with appropriate adjustments as to the number and kind of shares and/or applicable exercise or purchase price, in all cases, as determined by the Administrator;

 

(d)            To make adjustments in the number and type of Shares (or other securities or property) subject to outstanding Awards and/or with respect to which Awards may be granted under the Plan (including, but not limited to, adjustments of the limitations in Article IV on the maximum number and kind of shares which may be issued) and/or in the terms and conditions of (including the grant or exercise price or applicable performance goals), and the criteria included in, outstanding Awards;

 

(e)            To replace such Award with other rights or property selected by the Administrator; and/or

 

(f)            To provide that the Award will terminate and cannot vest, be exercised or become payable after the applicable event.

 

8.3            Effect of a Change in Control. Notwithstanding the provisions of Section 8.2, if a Change in Control occurs and a Participant’s Awards are not continued, converted, assumed, or replaced with a substantially similar award by (a) the Company, or (b) a successor entity or its parent or subsidiary (an “Assumption” or “Assumed”), and provided that the Participant has not had a Termination of Service, then, immediately prior to the Change in Control, such Awards shall become fully vested, exercisable and/or payable, as applicable, and all forfeiture, repurchase and other restrictions on such Awards shall lapse, in which case, such Awards shall be canceled upon the consummation of the Change in Control in exchange for the right to receive the Change in Control consideration payable to other holders of Common Stock (i) which may be on such terms and conditions as apply generally to holders of Common Stock under the Change in Control documents (including, without limitation, any escrow, earn-out or other deferred consideration provisions) or such other terms and conditions as the Administrator may provide, and (ii) determined by reference to the number of Shares subject to such Awards and net of any applicable exercise price; provided that to the extent that any Awards constitute “nonqualified deferred compensation” that may not be paid upon the Change in Control under Section 409A without the imposition of taxes thereon under Section 409A, the timing of such payments shall be governed by the applicable Award Agreement (subject to any deferred consideration provisions applicable under the Change in Control documents); and provided, further, that if the amount to which a Participant would be entitled upon the settlement or exercise of such Award at the time of the Change in Control is equal to or less than zero, then such Award may be terminated without payment. An Award will be considered replaced with a substantially similar award if the Award is exchanged for an amount of cash or other property with a value equal to the amount that could have been obtained upon the settlement of such Award in such Change in Control (as determined by the Administrator), even if such cash or other property payable with respect to the unvested portion of such Award remains subject to similar vesting provisions following such Change in Control. Notwithstanding the foregoing, the Administrator will have full and final authority to determine whether an Assumption of an Award has occurred in connection with a Change in Control.

 

 

8.4            Administrative Stand Still. In the event of any pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other extraordinary transaction or change affecting the Shares or the share price of Common Stock, including any Equity Restructuring or any securities offering or other similar transaction, for administrative convenience, the Administrator may refuse to permit the exercise of any Award for up to 60 days before or after such transaction.

 

8.5            General. Except as expressly provided in the Plan or the Administrator’s action under the Plan, no Participant will have any rights due to any subdivision or consolidation of Shares of any class, dividend payment, increase or decrease in the number of Shares of any class or dissolution, liquidation, merger, or consolidation of the Company or other corporation. Except as expressly provided with respect to an Equity Restructuring under Section 8.1 or the Administrator’s action under the Plan, no issuance by the Company of Shares of any class, or securities convertible into Shares of any class, will affect, and no adjustment will be made regarding, the number of Shares subject to an Award or the Award’s grant or exercise price. The existence of the Plan, any Award Agreements and the Awards granted hereunder will not affect or restrict in any way the Company’s right or power to make or authorize (i) any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, (ii) any merger, consolidation dissolution or liquidation of the Company or sale of Company assets or (iii) any sale or issuance of securities, including securities with rights superior to those of the Shares or securities convertible into or exchangeable for Shares. The Administrator may treat Participants and Awards (or portions thereof) differently under this Article VIII.

 

ARTICLE IX.
General Provisions Applicable to Awards

 

9.1            Transferability. Except as the Administrator may determine or provide in an Award Agreement or otherwise for Awards other than Incentive Stock Options, Awards may not be sold, assigned, transferred, pledged or otherwise encumbered, either voluntarily or by operation of law, except for certain Designated Beneficiary designations, by will or the laws of descent and distribution, or, subject to the Administrator’s consent, pursuant to a domestic relations order, and, during the life of the Participant, will be exercisable only by the Participant. Any permitted transfer of an Award hereunder shall be without consideration, except as required by Applicable Law. References to a Participant, to the extent relevant in the context, will include references to a Participant’s authorized transferee that the Administrator specifically approves.

 

9.2            Documentation. Each Award will be evidenced in an Award Agreement, which may be written or electronic, as the Administrator determines. Each Award may contain terms and conditions in addition to those set forth in the Plan.

 

 

9.3            Discretion. Except as the Plan otherwise provides, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award to a Participant need not be identical, and the Administrator need not treat Participants or Awards (or portions thereof) uniformly.

 

9.4            Termination of Status. The Administrator will determine how the disability, death, retirement, an authorized leave of absence or any other change or purported change in a Participant’s Service Provider status affects an Award and the extent to which, and the period during which, the Participant, the Participant’s legal representative, conservator, guardian or Designated Beneficiary may exercise rights under the Award, if applicable.

 

9.5            Withholding. Each Participant must pay the Company, the Operating Company or any of their respective Subsidiaries or affiliates, as applicable, or make provision satisfactory to the Administrator for payment of, any taxes required by Applicable Law to be withheld in connection with such Participant’s Awards by the date of the event creating the tax liability. The Company, the Operating Company or any of their respective Subsidiaries or affiliates may deduct an amount sufficient to satisfy such tax obligations based on the applicable statutory withholding rates (or such other rate as may be determined by the Company, the Operating Company or any of their respective Subsidiaries or affiliates after considering any accounting consequences or costs) from any payment of any kind otherwise due to a Participant. In the absence of a contrary determination by the Company, the Operating Company or any of their respective Subsidiaries or affiliates (or, with respect to withholding pursuant to clause (ii) below with respect to Awards held by individuals subject to Section 16 of the Exchange Act, a contrary determination by the Administrator), all tax withholding obligations will be calculated based on the minimum applicable statutory withholding rates. Subject to Section 10.8 and any Company insider trading policy (including blackout periods), Participants may satisfy such tax obligations (i) in cash, by wire transfer of immediately available funds, by check made payable to the order of the Company, provided that the Company may limit the use of the foregoing payment forms if one or more of the payment forms below is permitted, (ii) to the extent permitted by the Administrator, in whole or in part by delivery of Shares, including Shares delivered by attestation and Shares retained from the Award creating the tax obligation, valued at their fair market value on the date of delivery, (iii) subject to Section 9.10, if there is a public market for Shares at the time the tax obligations are satisfied, unless the Company otherwise determines, (A) delivery (including electronically or telephonically to the extent permitted by the Company) of an irrevocable and unconditional undertaking by a broker acceptable to the Company to deliver promptly to the Company sufficient funds to satisfy the tax obligations, or (B) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company to deliver promptly to the Company cash or a check sufficient to satisfy the tax withholding; provided that such amount is paid to the Company at such time as may be required by the Administrator, or (iv) to the extent permitted by the Company, any combination of the foregoing payment forms approved by the Administrator. Notwithstanding any other provision of the Plan, the number of Shares which may be so delivered or retained pursuant to clause (ii) of the immediately preceding sentence shall be limited to the number of Shares which have a fair market value on the date of delivery or retention no greater than the aggregate amount of such liabilities based on the maximum individual statutory withholding rate in the applicable jurisdiction at the time of such withholding (or such other rate as may be required to avoid the liability classification of the applicable award under generally accepted accounting principles in the United States of America). Subject to Section 9.10, if any tax withholding obligation will be satisfied under clause (ii) above by the Company’s retention of Shares from the Award creating the tax obligation and there is a public market for Shares at the time the tax obligation is satisfied, the Company may elect to instruct any brokerage firm determined acceptable to the Company for such purpose to sell on the applicable Participant’s behalf some or all of the Shares retained and to remit the proceeds of the sale to the Company or its designee, and each Participant’s acceptance of an Award under the Plan will constitute the Participant’s authorization to the Company and instruction and authorization to such brokerage firm to complete the transactions described in this sentence.

 

 

9.6            Amendment of Award; Repricing. The Administrator may amend, modify or terminate any outstanding Award, including by substituting another Award of the same or a different type, changing the exercise or settlement date, and converting an Incentive Stock Option to a Non-Qualified Stock Option. The Participant’s consent to such action will be required unless (i) the action, taking into account any related action, does not materially and adversely affect the Participant’s rights under the Award, or (ii) the change is permitted under Article VIII or pursuant to Section 10.6. Notwithstanding the foregoing or anything in the Plan to the contrary, the Administrator may, without the approval of the stockholders of the Company, reduce the exercise price per share of outstanding Options or Stock Appreciation Rights or cancel outstanding Options or Stock Appreciation Rights in exchange for cash, other Awards or Options or Stock Appreciation Rights with an exercise price per share that is less than the exercise price per share of the original Options or Stock Appreciation Rights.

 

9.7            Conditions on Delivery of Stock. The Company will not be obligated to deliver any Shares under the Plan or remove restrictions from Shares previously delivered under the Plan until (i) all Award conditions have been met or removed to the Company’s satisfaction, (ii) as determined by the Company, all other legal matters regarding the issuance and delivery of such Shares have been satisfied, including any applicable securities laws and stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Administrator deems necessary or appropriate to satisfy any Applicable Laws. The Company’s inability to obtain authority from any regulatory body having jurisdiction, which the Administrator determines is necessary to the lawful issuance and sale of any securities, will relieve the Company of any liability for failing to issue or sell such Shares as to which such requisite authority has not been obtained.

 

9.8            Acceleration. The Administrator may at any time provide that any Award will become immediately vested and fully or partially exercisable, free of some or all restrictions or conditions, or otherwise fully or partially realizable.

 

9.9            Cash Settlement. Without limiting the generality of any other provision of the Plan, the Administrator may provide, in an Award Agreement or subsequent to the grant of an Award, in its discretion, that any Award may be settled in cash, Shares or a combination thereof.

 

9.10          Broker-Assisted Sales. In the event of a broker-assisted sale of Shares in connection with the payment of amounts owed by a Participant under or with respect to the Plan or Awards, including amounts to be paid under the final sentence of Section 9.5: (a) any Shares to be sold through the broker-assisted sale will be sold on the day the payment first becomes due, or as soon thereafter as practicable; (b) such Shares may be sold as part of a block trade with other Participants in the Plan in which all Participants receive an average price; (c) the applicable Participant will be responsible for all broker’s fees and other costs of sale, and by accepting an Award, each Participant agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale; (d) to the extent the Company or its designee receives proceeds of such sale that exceed the amount owed, the Company will pay such excess in cash to the applicable Participant as soon as reasonably practicable; (e) the Company and its designees are under no obligation to arrange for such sale at any particular price; and (f) in the event the proceeds of such sale are insufficient to satisfy the Participant’s applicable obligation, the Participant may be required to pay immediately upon demand to the Company or its designee an amount in cash sufficient to satisfy any remaining portion of the Participant’s obligation.

 

 

ARTICLE X.
Miscellaneous

 

10.1          No Right to Employment or Other Status. No person will have any claim or right to be granted an Award, and the grant of an Award will not be construed as giving a Participant the right to continued employment or any other relationship with the Company, the Operating Company or any of their respective Subsidiaries or affiliates. The Company, the Operating Company and their respective Subsidiaries or affiliates expressly reserve the right at any time to dismiss or otherwise terminate their relationship with a Participant free from any liability or claim under the Plan or any Award, except as expressly provided in an Award Agreement or in the Plan.

 

10.2          No Rights as Stockholder; Certificates. Subject to the Award Agreement, no Participant or Designated Beneficiary will have any rights as a stockholder with respect to any Shares to be distributed under an Award until becoming the record holder of such Shares. Notwithstanding any other provision of the Plan, unless the Administrator otherwise determines or Applicable Laws require, the Company will not be required to deliver to any Participant certificates evidencing Shares issued in connection with any Award and instead such Shares may be recorded in the books of the Company (or, as applicable, its transfer agent or stock plan administrator). The Company may place legends on stock certificates issued under the Plan that the Administrator deems necessary or appropriate to comply with Applicable Laws.

 

10.3          Effective Date and Term of Plan. Unless earlier terminated by the Board, the Plan will become effective on the Effective Date and will remain in effect until terminated by the Administrator in accordance with the Plan. Notwithstanding anything to the contrary in the Plan, an Incentive Stock Option may not be granted under the Plan after 10 years from the earlier of (i) the date the Board adopted the Plan or (ii) the date the Company’s stockholders approved the Plan. Notwithstanding anything to the contrary contained herein, if the Plan is not approved by the Company’s stockholders, the Plan will not become effective and no Awards will be granted under the Plan.

 

10.4          Amendment of Plan. The Administrator may amend, suspend or terminate the Plan at any time; provided that no amendment to the Plan, other than an increase to the Overall Share Limit, may materially and adversely affect any Award outstanding at the time of such amendment without the affected Participant’s consent. No Awards may be granted under the Plan during any suspension period or after the Plan’s termination. Awards outstanding at the time of any Plan suspension or termination will continue to be governed by the Plan and the Award Agreement, as in effect before such suspension or termination. The Board will obtain stockholder approval of any Plan amendment to the extent necessary to comply with Applicable Laws (including to increase the Overall Share Limit).

 

10.5          Provisions for Foreign Participants. The Administrator may modify Awards granted to Participants who are foreign nationals or employed outside the United States or establish subplans or procedures under the Plan to address differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.

 

10.6          Section 409A.

 

(a)            General. The Company intends that all Awards be structured to comply with, or be exempt from, Section 409A, such that no adverse tax consequences, interest, or penalties under Section 409A apply. Notwithstanding anything in the Plan or any Award Agreement to the contrary, the Administrator may, without a Participant’s consent, amend this Plan or Awards, adopt policies and procedures, or take any other actions (including amendments, policies, procedures and retroactive actions) as are necessary or appropriate to preserve the intended tax treatment of Awards, including any such actions intended to (A) exempt this Plan or any Award from Section 409A, or (B) comply with Section 409A, including regulations, guidance, compliance programs and other interpretative authority that may be issued after an Award’s grant date. The Company makes no representations or warranties as to an Award’s tax treatment under Section 409A or otherwise. The Company will have no obligation under this Section 10.6 or otherwise to avoid the taxes, penalties or interest under Section 409A with respect to any Award and will have no liability to any Participant or any other person if any Award, compensation or other benefits under the Plan are determined to constitute noncompliant “nonqualified deferred compensation” subject to taxes, penalties or interest under Section 409A.

 

 

(b)            Separation from Service. If an Award constitutes “nonqualified deferred compensation” under Section 409A, any payment or settlement of such Award upon a termination of a Participant’s Service Provider relationship will, to the extent necessary to avoid taxes under Section 409A, be made only upon the Participant’s “separation from service” (within the meaning of Section 409A), whether such “separation from service” occurs upon or after the termination of the Participant’s Service Provider relationship. For purposes of this Plan or any Award Agreement relating to any such payments or benefits, references to a “termination,” “termination of employment” or like terms means a “separation from service.” Furthermore, notwithstanding any contrary provision of the Plan or any Award Agreement, any payment of “nonqualified deferred compensation” under the Plan that may be made in installments shall be treated as a right to receive a series of separate and distinct payments.

 

(c)            Payments to Specified Employees. Notwithstanding any contrary provision in the Plan or any Award Agreement, any payment(s) of “nonqualified deferred compensation” required to be made under an Award to a “specified employee” (as defined under Section 409A and as the Administrator determines) due to his or her “separation from service” will, to the extent necessary to avoid taxes under Section 409A(a)(2)(B)(i) of the Code, be delayed for the six-month period immediately following such “separation from service” (or, if earlier, until the specified employee’s death) and will instead be paid (as set forth in the Award Agreement) on the day immediately following such six-month period or as soon as administratively practicable thereafter (without interest). Any payments of “nonqualified deferred compensation” under such Award payable more than six months following the Participant’s “separation from service” will be paid at the time or times the payments are otherwise scheduled to be made.

 

10.7          Limitations on Liability. Notwithstanding any other provisions of the Plan, and to the fullest extent permitted by Applicable Laws and the Company’s Certificate of Formation and bylaws, (a) no individual acting as a director, officer, other employee or agent of the Company, the Operating Company or any of their respective Subsidiaries or affiliates will be liable to any Participant, former Participant, spouse, beneficiary, or any other person for any claim, loss, liability, or expense incurred in connection with the Plan or any Award, and such individual will not be personally liable with respect to the Plan because of any contract or other instrument executed in his or her capacity as an Administrator, director, officer, other employee or agent of the Company, the Operating Company or any of their respective Subsidiaries or affiliates and (b) the Company will indemnify and hold harmless each director, officer, other employee and agent of the Company, the Operating Company or any of their respective Subsidiaries or affiliates that has been or will be granted or delegated any duty or power relating to the Plan’s administration or interpretation, against any cost or expense (including attorneys’ fees) or liability (including any sum paid in settlement of a claim with the Administrator’s approval) arising from any act or omission concerning this Plan unless arising from such person’s own fraud or bad faith.

 

10.8          Lock-Up Period. The Company may, at the request of any underwriter representative or otherwise, in connection with registering the offering of any Company securities under the Securities Act, prohibit Participants from, directly or indirectly, selling or otherwise transferring any Shares or other Company securities during a period of up to 180 days following the effective date of a Company registration statement filed under the Securities Act, or such longer period as determined by the underwriter.

 

 

10.9          Data Privacy. As a condition for receiving any Award, each Participant explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of personal data as described in this section by and among the Company, the Operating Company and their respective Subsidiaries and affiliates exclusively for implementing, administering and managing the Participant’s participation in the Plan. The Company, the Operating Company and their respective Subsidiaries and affiliates may hold certain personal information about a Participant, including the Participant’s name, address and telephone number; birthdate; social security, insurance number or other identification number; salary; nationality; job title(s); any Shares held in the Company, the Operating Company or their respective Subsidiaries and affiliates; and Award details, to implement, manage and administer the Plan and Awards (the “Data”). The Company, the Operating Company and their respective Subsidiaries and affiliates may transfer the Data amongst themselves as necessary to implement, administer and manage a Participant’s participation in the Plan, and the Company, the Operating Company and their respective Subsidiaries and affiliates may transfer the Data to third parties assisting the Company with the Plan implementation, administration and management. These recipients may be located in the Participant’s country, or elsewhere, and the Participant’s country may have different data privacy laws and protections than the recipients’ country. By accepting an Award, each Participant authorizes such recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, to implement, administer and manage the Participant’s participation in the Plan, including any required Data transfer to a broker or other third party with whom the Company or the Participant may elect to deposit any Shares. The Data related to a Participant will be held only as long as necessary to implement, administer, and manage the Participant’s participation in the Plan. A Participant may, at any time, view the Data that the Company holds regarding such Participant, request additional information about the storage and processing of the Data regarding such Participant, recommend any necessary corrections to the Data regarding the Participant or refuse or withdraw the consents in this Section 10.9 in writing, without cost, by contacting the local human resources representative. If the Participant refuses or withdraws the consents in this Section 10.9, the Company may cancel Participant’s ability to participate in the Plan and, in the Administrator’s discretion, the Participant may forfeit any outstanding Awards. For more information on the consequences of refusing or withdrawing consent, Participants may contact their local human resources representative.

 

10.10        Severability. If any portion of the Plan or any action taken under it is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provisions had been excluded, and the illegal or invalid action will be null and void.

 

10.11        Governing Documents. If any contradiction occurs between the Plan and any Award Agreement or other written agreement between a Participant and the Company or the Operating Company (or any of their respective Subsidiaries or Affiliates) that the Administrator has approved, the Plan will govern, unless it is expressly specified in such Award Agreement or other written document that a specific provision of the Plan will not apply.

 

10.12        Governing Law. The Plan and all Awards will be governed by and interpreted in accordance with the laws of the State of Delaware, disregarding any state’s choice-of-law principles requiring the application of a jurisdiction’s laws other than the State of Delaware.

 

10.13        Clawback Provisions. All Awards (including, without limitation, any proceeds, gains or other economic benefit actually or constructively received by Participant upon any receipt or exercise of any Award or upon the receipt or sale of any Shares underlying the Award) shall be subject to the provisions of any clawback policy implemented by the Company, including, without limitation, the Company’s Policy for Recovery of Erroneously Awarded Compensation and any other clawback policy adopted to comply with Applicable Laws, as and to the extent set forth in such clawback policy or the Award Agreement.

 

10.14        Titles and Headings. The titles and headings in the Plan are for convenience of reference only and, if there is any conflict, the Plan’s text, rather than such titles or headings, will control.

 

10.15        Conformity to Laws. Participant acknowledges that the Plan is intended to conform to the extent necessary with Applicable Laws. Notwithstanding anything herein to the contrary, the Plan and all Awards will be administered only in conformance with Applicable Laws. To the extent Applicable Laws permit, the Plan and all Award Agreements will be deemed amended as necessary to conform to Applicable Laws.

 

 

10.16        Relationship to Other Benefits. No payment under the Plan will be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company, the Operating Company or any of their respective Subsidiaries or affiliates except as expressly provided in writing in such other plan or an agreement thereunder.

 

10.17        Grant of Awards to Certain Eligible Service Providers. The Company may provide through the establishment of a formal written policy (which shall be deemed a part of this Plan) or otherwise for the method by which Common Stock or other securities of the Company may be issued and by which such Common Stock or other securities and/or payment therefor may be exchanged or contributed among the Company, the Operating Company, or any of Affiliates, or may be returned to the Company upon any forfeiture of Common Stock or other securities by the eligible Service Provider.

 

ARTICLE XI.
Definitions

 

As used in the Plan, the following words and phrases will have the following meanings:

 

11.1          “Administrator” means the Board or a Committee to the extent that the Board’s powers or authority under the Plan have been delegated to such Committee.

 

11.2          “Affiliate” means, with respect to the Company or the Operating Company, any other person or entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with the Company or the Operating Company, as applicable, including (i) with respect to the Company, the Operating Company, (ii) any Subsidiary of the Company or the Operating Company, as applicable, and (iii) any affiliate of the Company or the Operating Company, as applicable, that is a domestic eligible entity that is disregarded, under Treasury Regulation Section 301.7701-3, as an entity separate from either the Company or the Operating Company, as applicable (or a Subsidiary thereof). As used in this definition, “control”, as used with respect to any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the controlled person or entity whether through ownership of voting securities, by contract or otherwise.

 

11.3          “Applicable Laws” means any applicable law, including without limitation: (a) provisions of the Code, the Securities Act, the Exchange Act and any rules or regulations thereunder; (b) corporate, securities, tax or other laws, statutes, rules, requirements or regulations, whether U.S. or non-U.S. federal, state or local; and (c) rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded.

 

11.4          “Award” means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Dividend Equivalents, or Other Stock or Cash Based Awards.

 

11.5          “Award Agreement” means a written agreement evidencing an Award, which may be electronic, that contains such terms and conditions as the Administrator determines, consistent with and subject to the terms and conditions of the Plan.

 

11.6          “Board” means the Board of Directors of the Company.

 

 

11.7          “Change in Control” means and includes each of the following:

 

(a)            A transaction or series of transactions (other than an offering of Common Stock to the general public through a registration statement filed with the Securities and Exchange Commission or a transaction or series of transactions that meets the requirements of clauses (i) and (ii) of subsection (c) below) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its Affiliates, an employee benefit plan maintained by the Company or any of its Affiliates or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company that results in such “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or

 

(b)            During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new Director(s) (other than a Director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in subsections (a) or (c)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the Directors then still in office who either were Directors at the beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or

 

(c)            The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction:

 

(i)            which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and

 

(ii)            after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (ii) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.

 

Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any Award (or portion of any Award) that provides for the deferral of compensation that is subject to Section 409A, to the extent required to avoid the imposition of additional taxes under Section 409A, the transaction or event described in subsection (a), (b) or (c) with respect to such Award (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such Award (or portion thereof) if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).

 

 

The Administrator shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above definition, the date of the occurrence of such Change in Control and any incidental matters relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change in Control is a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.

 

11.8          “Class A Common Stock” means the Class A common stock of the Company, par value of $0.0001 per share.

 

11.9          “Class B Common Stock” means the Class B common stock of the Company, par value of $0.0001 per share.

 

11.10        “Code” means the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.

 

11.11        “Committee” means one or more committees or subcommittees of the Board, which may include one or more Company directors or executive officers, to the extent Applicable Laws permit. To the extent required to comply with the provisions of Rule 16b-3, it is intended that each member of the Committee will be, at the time the Committee takes any action with respect to an Award that is subject to Rule 16b-3, a “non-employee director” within the meaning of Rule 16b-3; however, a Committee member’s failure to qualify as a “non-employee director” within the meaning of Rule 16b-3 will not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.

 

11.12        “Common Stock” means the Class A Common Stock or Class B Common Stock of the Company.

 

11.13        “Company” means X-Energy, Inc., a Delaware corporation, or any successor.

 

11.14        “Consultant” means any consultant or advisor engaged by the Company, the Operating Company or any of their respective Affiliates to render services to such entity, in each case that can be granted an Award that is eligible to be registered on a Form S-8 Registration Statement.

 

11.15        “Designated Beneficiary” means the beneficiary or beneficiaries the Participant designates, in a manner the Administrator determines, to receive amounts due or exercise the Participant’s rights if the Participant dies or becomes incapacitated. Without a Participant’s effective designation, “Designated Beneficiary” will mean the Participant’s estate.

 

11.16        “Director” means a Board member.

 

11.17        “Dividend Equivalents” means a right granted to a Participant under the Plan to receive the equivalent value (in cash or Shares) of dividends paid on Shares.

 

11.18        “Effective Date” means the day prior to the Public Trading Date.

 

11.19        “Employee” means any employee of the Company, the Operating Company or any of their respective Affiliates.

 

11.20        “Equity Restructuring” means, as determined by the Administrator, a non-reciprocal transaction between the Company and its stockholders, such as a stock dividend, stock split, spin-off or recapitalization, or a large, nonrecurring cash dividend, that affects the Shares (or other securities of the Company) or the share price of Common Stock (or other securities of the Company) and causes a change in the per share value of the Common Stock underlying outstanding Awards.

 

 

11.21        “Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

11.22        “Fair Market Value” means, as of any date, the value of a Share determined as follows: (a) if the Class A Common Stock is listed on any established stock exchange, its Fair Market Value will be the closing sales price for such Class A Common Stock as quoted on such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Class A Common Stock is not traded on a stock exchange but is quoted on a national market or other quotation system, the closing sales price on such date, or if no sales occurred on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (c) without an established market for the Class A Common Stock, the Administrator will determine the Fair Market Value in its discretion.

 

Notwithstanding the foregoing, with respect to any Award granted on the pricing date of the Company’s initial public offering, the Fair Market Value shall mean the initial public offering price of a Share as set forth in the Company’s final prospectus relating to its initial public offering filed with the Securities and Exchange Commission.

 

11.23        “Fully-Diluted Shares” means, as of any given date, (i) shares of Class A Common Stock and Class B Common Stock outstanding on such date, (ii) shares of Common Stock subject to compensatory equity awards (including stock options and restricted stock units) outstanding on such date, with (A) performance-based compensatory equity awards calculated at the “target” level of performance and (B) shares of Common Stock subject to stock options calculated on a “net exercised” basis as of the applicable date, assuming shares are surrendered having a Fair Market Value on such date equal to the exercise price of such options (rounded up to the nearest whole share, and determined without regard to the vested status of the stock option) and (iii) shares issuable upon the exercise or settlement of other equity securities with respect to which shares of Common Stock have not actually been issued and the conversion of all convertible securities into shares of Common Stock, in each case, counted on an as-converted-to shares of Common Stock basis.

 

11.24        “Greater Than 10% Stockholder” means an individual then owning (within the meaning of Section 424(d) of the Code) more than 10% of the total combined voting power of all classes of stock of the Company or its parent or subsidiary corporation, as defined in Section 424(e) and (f) of the Code, respectively.

 

11.25        “Incentive Stock Option” means an Option intended to qualify as an “incentive stock option” as defined in Section 422 of the Code.

 

11.26        “Non-Qualified Stock Option” means an Option, or portion thereof, not intended or not qualifying as an Incentive Stock Option.

 

11.27        “Option” means an option to purchase Shares, which will either be an Incentive Stock Option or a Non-Qualified Stock Option.

 

11.28        “Other Stock or Cash Based Awards” means cash awards, awards of Shares, and other awards valued wholly or partially by referring to, or are otherwise based on, Shares or other property awarded to a Participant under Article VII.

 

 

11.29         “Overall Share Limit” means the sum of (a) [ l ] Shares, and (b) an annual increase on the first day of each calendar year beginning on and including January 1, 2027 and ending on and including January 1, 2036 equal to the lesser of (i) a number of Shares equal to 5% of the aggregate number of shares of Class A Common Stock and Class B Common Stock outstanding on the final day of the immediately preceding calendar year, and (ii) such smaller number of Shares as is determined by the Board.

 

11.30        “Participant” means a Service Provider who has been granted an Award.

 

11.31        “Performance Criteria” mean the criteria (and adjustments) that the Administrator may select for an Award to establish performance goals for a performance period, which may include the following: net earnings or losses (either before or after one or more of interest, taxes, depreciation, amortization, and non-cash equity-based compensation expense); gross or net sales or revenue or sales or revenue growth; net income (either before or after taxes) or adjusted net income; profits (including but not limited to gross profits, net profits, profit growth, net operation profit or economic profit), profit return ratios or operating margin; budget or operating earnings (either before or after taxes or before or after allocation of corporate overhead and bonus); cash flow (including operating cash flow and free cash flow or cash flow return on capital); return on assets; return on capital or invested capital; cost of capital; return on stockholders’ equity; total stockholder return; return on sales; costs, reductions in costs and cost control measures; expenses; working capital; earnings or loss per share; adjusted earnings or loss per share; price per share or dividends per share (or appreciation in or maintenance of such price or dividends); regulatory achievements or compliance; implementation, completion or attainment of objectives relating to research, development, regulatory, commercial, or strategic milestones or developments; market share; economic value or economic value added models; division, group or corporate financial goals; customer satisfaction/growth; customer service; employee satisfaction; recruitment and maintenance of personnel; human capital management (including diversity and inclusion); supervision of litigation and other legal matters; strategic partnerships and transactions; financial ratios (including those measuring liquidity, activity, profitability or leverage); debt levels or reductions; sales-related goals; financing and other capital raising transactions; cash on hand; acquisition activity; investment sourcing activity; and marketing initiatives, any of which may be measured in absolute terms or as compared to any incremental increase or decrease. Such performance goals also may be based solely by reference to the Company’s performance or the performance of the Operating Company or any of their respective Subsidiaries or affiliates, division, business segment or business unit of the Company, the Operating Company or any of their respective Subsidiaries or affiliates, or based upon performance relative to performance of other companies or upon comparisons of any of the indicators of performance relative to performance of other companies.

 

11.32        “Plan” means this 2026 Equity Incentive Plan.

 

11.33        “Public Trading Date” means the first date upon which the Class A Common Stock is listed (or approved for listing) upon notice of issuance on any securities exchange or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system.

 

11.34        “Restricted Stock” means Shares awarded to a Participant under Article VI subject to certain vesting conditions and other restrictions.

 

11.35        “Restricted Stock Unit” means an unfunded, unsecured right to receive, on the applicable settlement date, one Share or an amount in cash or other consideration determined by the Administrator to be of equal value as of such settlement date awarded to a Participant under Article VI subject to certain vesting conditions and other restrictions.

  

 

11.36        “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act.

 

11.37        “Section 409A” means Section 409A of the Code and all regulations, guidance, compliance programs and other interpretative authority thereunder.

 

11.38        “Securities Act” means the Securities Act of 1933, as amended.

 

11.39        “Service Provider” means an Employee, Consultant or Director.

 

11.40        “Share” means a share of Class A Common Stock.

 

11.41         “Stock Appreciation Right” means a stock appreciation right granted under Article V.

 

11.42         “Subsidiary” means any entity (other than the Company), whether domestic or foreign, in an unbroken chain of entities beginning with the Company if each of the entities other than the last entity in the unbroken chain beneficially owns, at the time of the determination, securities or interests representing at least 50% of the total combined voting power of all classes of securities or interests in one of the other entities in such chain.

 

11.43        “Substitute Awards” means Awards granted or Shares issued by the Company in assumption of, or in substitution or exchange for, awards previously granted, or the right or obligation to make future awards, in each case by a company acquired by the Company or any Affiliate or with which the Company or any Affiliate combines.

 

11.44        “Termination of Service” means the date the Participant ceases to be a Service Provider.

 

* * * * *

 

 

Exhibit 10.2

 

X-ENERGY, inc.

2026 EQUITY INCENTIVE PLAN

 

RESTRICTED STOCK Unit Grant Notice

 

X-Energy, Inc., a Delaware corporation (the “Company”), has granted to the participant listed below (“Participant”) the Restricted Stock Units (the “RSUs”) described in this Restricted Stock Unit Grant Notice (this “Grant Notice”), subject to the terms and conditions of the X-Energy, Inc. 2026 Equity Incentive Plan (as amended from time to time, the “Plan”) and the Restricted Stock Unit Agreement attached hereto as Exhibit A (the “Agreement”), both of which are incorporated into this Grant Notice by reference. Capitalized terms not specifically defined in this Grant Notice or the Agreement have the meanings given to them in the Plan.

 

Participant:	[To be specified]
Grant Date:	[To be specified]
Number of RSUs:	[To be specified]
Vesting Commencement Date:	[To be specified]
Vesting Schedule:	[To be specified]

 

By accepting (whether in writing, electronically or otherwise) the RSUs, Participant agrees to be bound by the terms of this Grant Notice, the Plan and the Agreement. Participant has reviewed the Plan, this Grant Notice and the Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of the Plan, this Grant Notice and the Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, this Grant Notice or the Agreement.

 

X-ENERGY, INC.			PARTICIPANT
By:
Name:			Name:
Title:

 

 

RESTRICTED STOCK UNIT AGREEMENT

 

Capitalized terms not specifically defined in this Restricted Stock Unit Agreement (this “Agreement”) have the meanings specified in the Grant Notice or, if not defined in the Grant Notice, in the Plan.

 

Article I.
general

 

1.1           Award of RSUs. The Company has granted the RSUs to Participant effective as of the Grant Date set forth in the Grant Notice (the “Grant Date”). Each RSU represents the right to receive one Share as set forth in this Agreement. Participant will have no right to the distribution of any Shares until the time (if ever) the RSUs have vested.

 

1.2           Incorporation of Terms of Plan. The RSUs are subject to the terms and conditions set forth in this Agreement and the Plan, which is incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan will control.

 

1.3           Unsecured Promise. The RSUs will at all times prior to settlement represent an unsecured Company obligation payable only from the Company’s general assets.

 

Article II.
VESTING; forfeiture AND SETTLEMENT

 

2.1           Vesting; Forfeiture. The RSUs will vest according to the vesting schedule in the Grant Notice except that any fraction of an RSU that would otherwise be vested will be accumulated and will vest only when a whole RSU has accumulated. In the event of Participant’s Termination of Service for any reason, all unvested RSUs will immediately and automatically be cancelled and forfeited, except as otherwise determined by the Administrator or provided in a binding written agreement between Participant and the Company (after taking into consideration any accelerated vesting which may occur in connection with such Termination of Service).

 

2.2           Settlement.

 

(a)           The RSUs will, to the extent vested, be paid in Shares as soon as administratively practicable after the vesting of the applicable RSU, but in no event later than March 15 of the year following the year in which the RSU’s vesting date occurs.

 

(b)           Notwithstanding the foregoing, the Company may delay any payment under this Agreement that the Company reasonably determines would violate Applicable Law until the earliest date the Company reasonably determines the making of the payment will not cause such a violation (in accordance with Treasury Regulation Section 1.409A-2(b)(7)(ii)); provided the Company reasonably believes the delay will not result in the imposition of excise taxes under Section 409A.

 

Article III.
TAXATION AND TAX WITHHOLDING

 

3.1           Representation. Participant represents to the Company that Participant has reviewed with Participant’s own tax advisors the tax consequences of this award of RSUs (the “Award”) and the transactions contemplated by the Grant Notice and this Agreement. Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents.

 

 

3.2           Tax Withholding.

 

(a)           Subject to Section 3.2(b), payment of the withholding tax obligations with respect to the Award may be by any of the following, or a combination thereof, as determined by the Company:

 

(i)           Cash or check;

 

(ii)          In whole or in part by delivery of Shares, including Shares delivered by attestation and Shares retained from the Award creating the tax obligation, valued at their Fair Market Value on the date of delivery;

 

(iii)         Subject to Section 9.10 of the Plan, delivery (including electronically or telephonically to the extent permitted by the Company) by Participant to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company that Participant has placed a market sell order with such broker with respect to Shares then-issuable upon settlement of the Award, and that the broker has been directed to deliver promptly to the Company funds sufficient to satisfy the applicable tax withholding obligations; provided, that payment of such proceeds is then made to the Company at such time as may be required by the Administrator; or

 

(iv)         In whole or in part by the Company withholding of Shares otherwise vesting or issuable under this Award in satisfaction of any applicable withholding tax obligations.

 

(b)           Unless the Company otherwise determines, the Company shall withhold, or cause to be withheld, Shares otherwise vesting or issuable under this Award in satisfaction of any applicable withholding tax obligations.

 

(c)           Subject to Section 9.5 of the Plan, the applicable tax withholding obligation will be determined based on Participant’s Applicable Withholding Rate. Participant’s “Applicable Withholding Rate” shall mean (i) if Participant is subject to Section 16 of the Exchange Act, the greater of (A) the minimum applicable statutory tax withholding rate or (B) with Participant’s consent, the maximum individual tax withholding rate permitted under the rules of the applicable taxing authority for tax withholding attributable to the underlying transaction, or (ii) if Participant is not subject to Section 16 of the Exchange Act, the minimum applicable statutory tax withholding rate or such other higher rate approved by the Company; provided, however, that (x) in no event shall Participant’s Applicable Withholding Rate exceed the maximum individual statutory tax rate in the applicable jurisdiction at the time of such withholding (or such other rate as may be required to avoid the liability classification of the applicable award under generally accepted accounting principles in the United States of America); and (y) the number of Shares tendered or withheld, if applicable, shall be rounded up to the nearest whole Share sufficient to cover the applicable tax withholding obligation, to the extent rounding up to the nearest whole Share does not result in the liability classification of the RSUs under generally accepted accounting principles.

 

(d)           Participant acknowledges that Participant is ultimately liable and responsible for all taxes owed in connection with the RSUs, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the RSUs. Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or payment of the RSUs or the subsequent sale of Shares. The Company and its Subsidiaries do not commit and are under no obligation to structure the RSUs to reduce or eliminate Participant’s tax liability.

 

 

Article IV.
other provisions

 

4.1           Adjustments. Participant acknowledges that the RSUs and the Shares subject to the RSUs are subject to adjustment, modification and/or termination in certain events as provided in this Agreement and the Plan.

 

4.2           Clawback. The Award and the Shares issuable hereunder shall be subject to any clawback or recoupment policy in effect on the Grant Date or as may be adopted or maintained by the Company following the Grant Date, including the Company’s Policy for Recovery of Erroneously Awarded Compensation.

 

4.3           Notices. Any notice to be given under the terms of this Agreement to the Company must be in writing and addressed to the Company in care of the Company’s Chief Legal Officer at the Company’s principal office or the Chief Legal Officer’s then-current email address or facsimile number. Any notice to be given under the terms of this Agreement to Participant must be in writing and addressed to Participant (or, if Participant is then deceased, to the Designated Beneficiary) at Participant’s last known mailing address, email address or facsimile number in the Company’s personnel files. By a notice given pursuant to this Section, either party may designate a different address for notices to be given to that party. Any notice will be deemed duly given when actually received, when sent by email, when sent by certified mail (return receipt requested) and deposited with postage prepaid in a post office or branch post office regularly maintained by the United States Postal Service, when delivered by a nationally recognized express shipping company or upon receipt of a facsimile transmission confirmation.

 

4.4           Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.

 

4.5           Conformity to Securities Laws. Participant acknowledges that the Plan, the Grant Notice and this Agreement are intended to conform to the extent necessary with all Applicable Laws and, to the extent Applicable Laws permit, will be deemed amended as necessary to conform to Applicable Laws.

 

4.6           Successors and Assigns. The Company may assign any of its rights under this Agreement to a single or multiple assignees, and this Agreement will inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth in this Agreement or the Plan, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

 

4.7           Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange Act, the Plan, the Grant Notice, this Agreement and the RSUs will be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3) that are requirements for the application of such exemptive rule. To the extent Applicable Laws permit, this Agreement will be deemed amended as necessary to conform to such applicable exemptive rule.

 

4.8           Entire Agreement; Amendment. The Plan, the Grant Notice and this Agreement (including any exhibit hereto) constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided, however, that except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall materially and adversely affect the RSUs without the prior written consent of Participant.

 

 

4.9           Agreement Severable. In the event that any provision of the Grant Notice or this Agreement is held illegal or invalid, the provision will be severable from, and the illegality or invalidity of the provision will not be construed to have any effect on, the remaining provisions of the Grant Notice or this Agreement.

 

4.10         Limitation on Participant’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and may not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. Participant will have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the RSUs, and rights no greater than the right to receive cash or the Shares as a general unsecured creditor with respect to the RSUs, as and when settled pursuant to the terms of this Agreement.

 

4.11           Not a Contract of Employment. Nothing in the Plan, the Grant Notice or this Agreement confers upon Participant any right to continue in the employ or service of the Company or any Subsidiary or interferes with or restricts in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of Participant at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and Participant.

 

4.12           Counterparts. The Grant Notice may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which will be deemed an original and all of which together will constitute one instrument.

 

* * * * *

 

 

Exhibit 10.3

 

X-ENERGY, inc.

2026 EQUITY INCENTIVE PLAN

 

STOCK OPTION GRANT NOTICE

 

X-Energy, Inc., a Delaware corporation (the “Company”) has granted to Participant listed below (“Participant”) the stock option (the “Option”) described in this Stock Option Grant Notice (the “Grant Notice”), subject to the terms and conditions of the X-Energy, Inc. 2026 Equity Incentive Plan (as amended from time to time, the “Plan”) and the Stock Option Agreement attached hereto as Exhibit A (the “Agreement”), both of which are incorporated into this Grant Notice by reference. Capitalized terms not specifically defined in this Grant Notice or the Agreement have the meanings given to them in the Plan.

 

Participant:	[To be specified]
Grant Date:	[To be specified]
Exercise Price per Share:	[To be specified]
Shares Subject to the Option:	[To be specified]
Final Expiration Date:	[To be specified]
Vesting Commencement Date:	[To be specified]
Vesting Schedule:	[To be specified]
Type of Option	[Incentive Stock Option]/[Non-Qualified Stock Option]

 

By accepting (whether in writing, electronically or otherwise) the Option, Participant agrees to be bound by the terms of this Grant Notice, the Plan and the Agreement. Participant has reviewed the Plan, this Grant Notice and the Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully understands all provisions of the Plan, this Grant Notice and the Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan, this Grant Notice or the Agreement.

 

X-ENERGY, INC.			PARTICIPANT
By:
Name:			Name:
Title:

 

 

STOCK OPTION AGREEMENT

 

Capitalized terms not specifically defined in this Agreement have the meanings specified in the Grant Notice or, if not defined in the Grant Notice, in the Plan.

 

ARTICLE I.
GENERAL

 

1.1           Grant of Option. The Company has granted to Participant the Option effective as of the grant date set forth in the Grant Notice (the “Grant Date”).

 

1.2           Incorporation of Terms of Plan. The Option is subject to the terms and conditions set forth in this Agreement and the Plan, which is incorporated herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan will control.

 

ARTICLE II.
PERIOD OF EXERCISABILITY

 

2.1           Commencement of Exercisability. The Option will vest and become exercisable according to the vesting schedule in the Grant Notice (the “Vesting Schedule”) except that any fraction of a Share as to which the Option would be vested or exercisable will be accumulated and will vest and become exercisable only when a whole Share has accumulated. Notwithstanding anything in the Grant Notice, the Plan or this Agreement to the contrary, unless the Administrator otherwise determines, the Option will immediately expire and be forfeited as to any portion that is not vested and exercisable as of Participant’s Termination of Service for any reason (after taking into consideration any accelerated vesting and exercisability which may occur in connection with such Termination of Service).

 

2.2           Duration of Exercisability. The Vesting Schedule is cumulative. Any portion of the Option which vests and becomes exercisable will remain vested and exercisable until the Option expires. The Option will be forfeited immediately upon its expiration.

 

2.3           Expiration of Option. The Option may not be exercised to any extent by anyone after, and will expire on, the first of the following to occur:

 

(a)           The final expiration date in the Grant Notice; provided, however, such final expiration date may be extended pursuant to Section 5.3 of the Plan;

 

(b)           Except as the Administrator may otherwise approve, the expiration of three months from the date of Participant’s Termination of Service, unless Participant’s Termination of Service is for Cause (as defined below) or by reason of Participant’s death or Disability (as defined below);

 

(c)           Except as the Administrator may otherwise approve, the expiration of one year from the date of Participant’s Termination of Service by reason of Participant’s death or Disability; and

 

(d)           Except as the Administrator may otherwise approve, Participant’s Termination of Service for Cause.

 

 

2.4           Certain Definitions.

 

(a)           “Cause” shall mean, except as may otherwise be provided in Participant’s employment or service agreement with the Company or an Affiliate thereof to the extent such agreement is in effect at the relevant time and contains a definition of Cause, with respect to any Participant (as determined by the Administrator in its sole discretion): (i) the willful failure of Participant to substantially perform the duties of his or her services to the Company or any of its Affiliates (other than any such failure due to Participant’s death or Disability); (ii) Participant’s engaging in fraud, willful misconduct, or dishonesty that has caused or is reasonably expected to result in injury to the Company or any of its Affiliates; (iii) Participant’s breach of any fiduciary duty owed to the Company or the Subsidiaries; (iv) Participant’s conviction of, or entering a plea of guilty or nolo contendere to, a crime that constitutes a felony or involving moral turpitude; (v) Participant’s violation or breach of any material written Company policy or rule, or Participant’s violation or breach of any of his obligations under any material written agreement or covenant with the Company or any of its Affiliates; or (vi) Participant’s failure to cooperate, if requested by the Company or any of its Affiliates, with any investigation or inquiry into Participant’s or the Company’s or any of its Affiliates’ business practices, whether internal or external, including, but not limited to, Participant’s refusal to be deposed or to provide testimony at any trial or inquiry. A termination for Cause shall include a determination by the Administrator to that effect following the termination of Participant’s services to the Company for any reason that would have justified a termination by the Company for Cause.

 

(b)           “Disability” shall mean a permanent and total disability under Section 22(e)(3) of the Code.

 

ARTICLE III.
EXERCISE OF OPTION

 

3.1           Person Eligible to Exercise. During Participant’s lifetime, only Participant may exercise the Option. After Participant’s death, any exercisable portion of the Option may, prior to the time the Option expires, be exercised by Participant’s Designated Beneficiary as provided in the Plan.

 

3.2           Partial Exercise. Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised, in whole or in part, according to the procedures in the Plan at any time prior to the time the Option or portion thereof expires, except that the Option may only be exercised for whole Shares.

 

3.3           Tax Withholding; Exercise Price.

 

(a)           Subject to Section 3.3(b) and 3.3(c), payment of the exercise price and withholding tax obligations with respect to the Option may be by any of the following, or a combination thereof, as determined by the Company:

 

(i)           Cash or check;

 

(ii)          In whole or in part by delivery of Shares, including Shares delivered by attestation and Shares retained from the Option creating the tax obligation, valued at their Fair Market Value on the date of delivery;

 

(iii)         Subject to Section 9.10 of the Plan, delivery (including electronically or telephonically to the extent permitted by the Company) by Participant to the Company of a copy of irrevocable and unconditional instructions to a broker acceptable to the Company that Participant has placed a market sell order with such broker with respect to Shares then-issuable upon exercise of the Option, and that the broker has been directed to deliver promptly to the Company funds sufficient to satisfy the applicable exercise price and/or tax withholding obligations; provided, that payment of such proceeds is then made to the Company at such time as may be required by the Administrator; or

 

 

(iv)          In whole or in part by the Company withholding of Shares otherwise issuable upon exercise of this Option.

 

(b)           Unless the Company otherwise determines, the Company shall withhold, or cause to be withheld, Shares otherwise issuable under this Option in satisfaction of any exercise price and/or applicable withholding tax obligations.

 

(c)           Subject to Section 9.5 of the Plan, the applicable tax withholding obligation will be determined based on Participant’s Applicable Withholding Rate. Participant’s “Applicable Withholding Rate” shall mean (i) if Participant is subject to Section 16 of the Exchange Act, the greater of (A) the minimum applicable statutory tax withholding rate or (B) with Participant’s consent, the maximum individual tax withholding rate permitted under the rules of the applicable taxing authority for tax withholding attributable to the underlying transaction, or (ii) if Participant is not subject to Section 16 of the Exchange Act, the minimum applicable statutory tax withholding rate or such other higher rate approved by the Company; provided, however, that (x) in no event shall Participant’s Applicable Withholding Rate exceed the maximum individual statutory tax rate in the applicable jurisdiction at the time of such withholding (or such other rate as may be required to avoid the liability classification of the applicable award under generally accepted accounting principles in the United States of America); and (y) the number of Shares tendered or withheld, if applicable, shall be rounded up to the nearest whole Share sufficient to cover the applicable tax withholding obligation, to the extent rounding up to the nearest whole Share does not result in the liability classification of the Option under generally accepted accounting principles.

 

(d)           Participant acknowledges that Participant is ultimately liable and responsible for the exercise price and all taxes owed in connection with the Option (and, with respect to taxes, regardless of any action the Company or any Subsidiary takes with respect to any tax withholding obligations that arise in connection with the Option). Neither the Company nor any Subsidiary makes any representation or undertaking regarding the treatment of any tax withholding in connection with the awarding, vesting or exercise of the Option or the subsequent sale of Shares. The Company and the Subsidiaries do not commit and are under no obligation to structure the Option to reduce or eliminate Participant’s tax liability.

 

ARTICLE IV.
OTHER PROVISIONS

 

4.1           Adjustments. Participant acknowledges that the Option is subject to adjustment, modification and termination in certain events as provided in this Agreement and the Plan.

 

4.2           Clawback. The Option and the Shares issuable hereunder shall be subject to any clawback or recoupment policy in effect on the Grant Date or as may be adopted or maintained by the Company following the Grant Date, including the Company’s Policy for Recovery of Erroneously Awarded Compensation.

 

4.3           Notices. Any notice to be given under the terms of this Agreement to the Company must be in writing and addressed to the Company in care of the Company’s Chief Legal Officer at the Company’s principal office or the Chief Legal Officer’s then-current email address or facsimile number. Any notice to be given under the terms of this Agreement to Participant must be in writing and addressed to Participant (or, if Participant is then deceased, to the Designated Beneficiary) at Participant’s last known mailing address, email address or facsimile number in the Company’s personnel files. By a notice given pursuant to this Section, either party may designate a different address for notices to be given to that party. Any notice will be deemed duly given when actually received, when sent by email, when sent by certified mail (return receipt requested) and deposited with postage prepaid in a post office or branch post office regularly maintained by the United States Postal Service, when delivered by a nationally recognized express shipping company or upon receipt of a facsimile transmission confirmation.

 

 

4.4           Titles. Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.

 

4.5           Conformity to Securities Laws. Participant acknowledges that the Plan, the Grant Notice and this Agreement are intended to conform to the extent necessary with all Applicable Laws and, to the extent Applicable Laws permit, will be deemed amended as necessary to conform to Applicable Laws.

 

4.6           Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement will inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set forth in this Agreement or the Plan, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

 

4.7           Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of the Plan or this Agreement, if Participant is subject to Section 16 of the Exchange Act, the Plan, the Grant Notice, this Agreement and the Option will be subject to any additional limitations set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule 16b-3) that are requirements for the application of such exemptive rule. To the extent Applicable Laws permit, this Agreement will be deemed amended as necessary to conform to such applicable exemptive rule.

 

4.8           Entire Agreement; Amendment. The Plan, the Grant Notice and this Agreement (including any exhibit hereto) constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Company and Participant with respect to the subject matter hereof. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided, however, that except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall materially and adversely affect the Option without the prior written consent of Participant.

 

4.9           Agreement Severable. In the event that any provision of the Grant Notice or this Agreement is held illegal or invalid, the provision will be severable from, and the illegality or invalidity of the provision will not be construed to have any effect on, the remaining provisions of the Grant Notice or this Agreement.

 

4.10         Limitation on Participant’s Rights. Participation in the Plan confers no rights or interests other than as herein provided. This Agreement creates only a contractual obligation on the part of the Company as to amounts payable and may not be construed as creating a trust. Neither the Plan nor any underlying program, in and of itself, has any assets. Participant will have only the rights of a general unsecured creditor of the Company with respect to amounts credited and benefits payable, if any, with respect to the Option, and rights no greater than the right to receive the Shares as a general unsecured creditor with respect to the Option, as and when exercised pursuant to the terms hereof.

 

4.11         Not a Contract of Employment. Nothing in the Plan, the Grant Notice or this Agreement confers upon Participant any right to continue in the employ or service of the Company or any Subsidiary or interferes with or restricts in any way the rights of the Company and its Subsidiaries, which rights are hereby expressly reserved, to discharge or terminate the services of Participant at any time for any reason whatsoever, with or without Cause, except to the extent expressly provided otherwise in a written agreement between the Company or a Subsidiary and Participant.

 

 

4.12         Counterparts. The Grant Notice may be executed in one or more counterparts, including by way of any electronic signature, subject to Applicable Law, each of which will be deemed an original and all of which together will constitute one instrument.

 

4.13         Incentive Stock Options. If the Option is designated as an Incentive Stock Option:

 

(a)           Participant acknowledges that to the extent the aggregate fair market value of shares (determined as of the time the option with respect to the shares is granted) with respect to which stock options intended to qualify as “incentive stock options” under Section 422 of the Code, including the Option, are exercisable for the first time by Participant during any calendar year exceeds $100,000 or if for any other reason such stock options do not qualify or cease to qualify for treatment as “incentive stock options” under Section 422 of the Code, such stock options (including the Option) will be treated as non-qualified stock options. Participant further acknowledges that the rule set forth in the preceding sentence will be applied by taking the Option and other stock options into account in the order in which they were granted, as determined under Section 422(d) of the Code. Participant also acknowledges that if the Option is exercised more than three months after Participant’s Termination of Service, other than by reason of death or Disability, the Option will be taxed as a Non-Qualified Stock Option.

 

(b)           Participant will give prompt written notice to the Company of any disposition or other transfer of any Shares acquired under this Agreement if such disposition or other transfer is made (i) within two years from the Grant Date or (ii) within one year after the transfer of such Shares to Participant. Such notice will specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by Participant in such disposition or other transfer.

 

* * * * *

 

 

 

Exhibit 10.4

 

X-ENERGY, INC. 2026 EMPLOYEE STOCK PURCHASE PLAN

 

Article I.
PURPOSE

 

The purposes of this X-Energy, Inc. 2026 Employee Stock Purchase Plan (as it may be amended or restated from time to time, the “Plan”) are to assist Eligible Employees of X-Energy, Inc., a Delaware corporation (the “Company”), X-Energy Reactor Company, LLC (the “Operating Company”) and its other Designated Subsidiaries in acquiring a stock ownership interest in the Company.

 

The Plan consists of two components: (i) the Section 423 Component and (ii) the Non-Section 423 Component. The Section 423 Component is intended to qualify as an “employee stock purchase plan” under Section 423 of the Code and shall be administered, interpreted and construed in a manner consistent with the requirements of Section 423 of the Code. The Non-Section 423 Component authorizes the grant of rights which need not qualify as rights granted pursuant to an “employee stock purchase plan” under Section 423 of the Code. Rights granted under the Non-Section 423 Component shall be granted pursuant to separate Offerings containing such sub-plans, appendices, rules or procedures as may be adopted by the Administrator and designed to achieve tax, securities laws or other objectives for Eligible Employees and Designated Subsidiaries but shall not be intended to qualify as an “employee stock purchase plan” under Section 423 of the Code. Except as otherwise determined by the Administrator or provided herein, the Non-Section 423 Component will operate and be administered in the same manner as the Section 423 Component. Offerings intended to be made under the Non-Section 423 Component will be designated as such by the Administrator at or prior to the time of such Offering.

 

For purposes of this Plan, the Administrator may designate separate Offerings under the Plan in which Eligible Employees will participate. The terms of these Offerings need not be identical, even if the dates of the applicable Offering Period(s) in each such Offering are identical, provided that the terms of participation are the same within each separate Offering under the Section 423 Component (as determined under Section 423 of the Code). Solely by way of example and without limiting the foregoing, the Company could, but shall not be required to, provide for simultaneous Offerings under the Section 423 Component and the Non-Section 423 Component of the Plan.

 

Article II.
DEFINITIONS AND CONSTRUCTION

 

Wherever the following terms are used in the Plan they shall have the meanings specified below, unless the context clearly indicates otherwise. The singular pronoun shall include the plural where the context so indicates. Masculine, feminine and neuter pronouns are used interchangeably and each comprehends the others.

 

2.1           “Administrator” shall mean the entity that conducts the general administration of the Plan as provided in Article XI. The term “Administrator” shall refer to the Committee unless the Board has assumed the authority for administration of the Plan as provided in Article XI.

 

2.2            “Applicable Law” shall mean any applicable law, including without limitation: (a) provisions of the Code, the Securities Act, the Exchange Act and any rules or regulations thereunder; (b) corporate, securities, tax or other laws, statutes, rules, requirements or regulations, whether U.S. or non-U.S. federal, state or local; and (c) rules of any securities exchange or automated quotation system on which the Shares are listed, quoted or traded.

 

 

2.3            “Board” shall mean the Board of Directors of the Company.

 

2.4            “Change in Control” shall mean and include each of the following:

 

(a)            A transaction or series of transactions (other than an offering of Common Stock to the general public through a registration statement filed with the Securities and Exchange Commission or a transaction or series of transactions that meets the requirements of clauses (i) and (ii) of subsection (c) below) whereby any “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of its affiliates, an employee benefit plan maintained by the Company or any of its affiliates or a “person” that, prior to such transaction, directly or indirectly controls, is controlled by, or is under common control with, the Company) directly or indirectly acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company that results in such “person” or related “group” of “persons” (as such terms are used in Sections 13(d) and 14(d)(2) of the Exchange Act) possessing more than 50% of the total combined voting power of the Company’s securities outstanding immediately after such acquisition; or

 

(b)            During any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board together with any new Director(s) (other than a Director designated by a person who shall have entered into an agreement with the Company to effect a transaction described in subsections (a) or (c)) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the Directors then still in office who either were Directors at the beginning of the two-year period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof; or

 

(c)            The consummation by the Company (whether directly involving the Company or indirectly involving the Company through one or more intermediaries) of (x) a merger, consolidation, reorganization, or business combination or (y) a sale or other disposition of all or substantially all of the Company’s assets in any single transaction or series of related transactions or (z) the acquisition of assets or stock of another entity, in each case other than a transaction:

 

(i)            which results in the Company’s voting securities outstanding immediately before the transaction continuing to represent (either by remaining outstanding or by being converted into voting securities of the Company or the person that, as a result of the transaction, controls, directly or indirectly, the Company or owns, directly or indirectly, all or substantially all of the Company’s assets or otherwise succeeds to the business of the Company (the Company or such person, the “Successor Entity”)) directly or indirectly, at least a majority of the combined voting power of the Successor Entity’s outstanding voting securities immediately after the transaction, and

 

(ii)            after which no person or group beneficially owns voting securities representing 50% or more of the combined voting power of the Successor Entity; provided, however, that no person or group shall be treated for purposes of this clause (ii) as beneficially owning 50% or more of the combined voting power of the Successor Entity solely as a result of the voting power held in the Company prior to the consummation of the transaction.

 

Notwithstanding the foregoing, if a Change in Control constitutes a payment event with respect to any portion of any right that provides for the deferral of compensation that is subject to Section 409A of the Code, to the extent required to avoid the imposition of additional taxes under Section 409A of the Code, the transaction or event described in subsection (a), (b) or (c) with respect to such right (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing of such right (or portion thereof) if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section 1.409A-3(i)(5).

 

 

The Administrator shall have full and final authority, which shall be exercised in its discretion, to determine conclusively whether a Change in Control has occurred pursuant to the above definition, the date of the occurrence of such Change in Control and any incidental matters relating thereto; provided that any exercise of authority in conjunction with a determination of whether a Change in Control is a “change in control event” as defined in Treasury Regulation Section 1.409A-3(i)(5) shall be consistent with such regulation.

 

2.5            “Class A Common Stock” shall mean the Class A common stock of the Company, par value $0.0001 per share.

 

2.6            “Class B Common Stock” shall mean the Class B common stock of the Company, par value $0.0001 per share.

 

2.7            “Code” shall mean the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder.

 

2.8            “Common Stock” shall mean the Class A Common Stock or Class B Common Stock of the Company.

 

2.9            “Company” shall mean X-Energy, Inc., a Delaware corporation, or any successor.

 

2.10            “Compensation” of an Eligible Employee shall mean, unless otherwise specified in the Offering Document, the gross base salary received by such Eligible Employee as compensation for services to the Company or any Designated Subsidiary (excluding one-time bonuses (e.g., retention or sign-on bonuses), periodic (e.g., annual or quarterly) bonuses, commissions, military leave pay, education or tuition reimbursements, travel expenses, business and moving reimbursements, income received in connection with any stock options, stock appreciation rights, restricted stock, restricted stock units or other compensatory equity or equity-linked awards, fringe benefits, other special payments and all contributions made by the Company or any Designated Subsidiary for the Employee’s benefit under any employee benefit plan now or hereafter established).

 

2.11            “Designated Subsidiary” shall mean the Operating Company and any other Subsidiary designated by the Administrator in accordance with Section 11.2(b), such designation to specify whether such participation by Eligible Employees employed by such Designated Subsidiary is in the Section 423 Component or Non-Section 423 Component. All of the Eligible Employees of a Designated Subsidiary may participate in either the Section 423 Component or Non-Section 423 Component, but not both; provided that the Eligible Employees of a Subsidiary that, for U.S. tax purposes, is disregarded from the Company or any Subsidiary that participates in the Section 423 Component shall automatically constitute a Designated Subsidiary that participates in the Section 423 Component.

 

2.12            “Director” shall mean a Board member.

 

2.13            “Effective Date” shall mean the date the Board adopts the Plan.

 

2.14            “Eligible Employee” shall mean, subject to clauses (a) and (b) below, an Employee who does not, immediately after any rights under this Plan are granted, own (directly or through attribution) stock possessing 5% or more of the total combined voting power or value of all classes of Common Stock and other stock of the Company, a Parent or a Subsidiary (as determined under Section 423(b)(3) of the Code).

 

 

(a)            With respect to the Section 423 Component:

 

(i)            The rules of Section 424(d) of the Code with regard to the attribution of stock ownership shall apply in determining the stock ownership of an Employee, and stock that an Employee may purchase under outstanding options shall be treated as stock owned by the Employee; and

 

(ii)            The Administrator may provide in an Offering Document that an Employee shall not be eligible to participate in an Offering Period if: (A) such Employee is a highly compensated employee within the meaning of Section 423(b)(4)(D) of the Code, (B) such Employee has not met a service requirement designated by the Administrator pursuant to Section 423(b)(4)(A) of the Code (which service requirement may not exceed two years), (C) such Employee’s customary employment is for 20 hours or less per week, (D) such Employee’s customary employment is for less than five months in any calendar year and/or (E) such Employee is a citizen or resident of a foreign jurisdiction and the grant of a right to purchase Shares under the Plan to such Employee would be prohibited under the laws of such foreign jurisdiction or the grant of a right to purchase Shares under the Plan to such Employee in compliance with the laws of such foreign jurisdiction would cause the Plan to violate the requirements of Section 423 of the Code, as determined by the Administrator in its sole discretion; provided, further, that any exclusion in clauses (A), (B), (C), (D) or (E) shall be applied in an identical manner under each Offering Period to all Employees, in accordance with Treasury Regulation Section 1.423-2(e).

 

(b)            With respect to the Non-Section 423 Component:

 

(i)            The Administrator may limit eligibility further within the Company and each Designated Subsidiary so as to only designate some Employees of the Company or such Designated Subsidiary as Eligible Employees; and

 

(ii)            To the extent the definition of “Eligible Employee” is not consistent with local Applicable Laws, the local Applicable Laws shall control.

 

2.15            “Employee” shall mean an individual who renders services to the Company or any Designated Subsidiary as an employee, and, with respect to the Section 423 Component, a person who is an employee of the Company or any Designated Subsidiary within the meaning of Section 3401(c) of the Code. For purposes of an individual’s participation in, or other rights under, the Plan, all determinations by the Company shall be final, binding and conclusive, notwithstanding that any court of law or governmental agency subsequently makes a contrary determination. For purposes of the Plan, the employment relationship shall be treated as continuing intact while the individual is on sick leave or other leave of absence approved by the Company or Designated Subsidiary and meeting the requirements of Treasury Regulation Section 1.421-1(h)(2). Where the period of leave exceeds three months and the individual’s right to reemployment is not guaranteed either by statute or by contract, the employment relationship shall be deemed to have terminated on the first day immediately following such three-month period.

 

2.16            “Enrollment Date” shall mean the first Trading Day of each Offering Period, unless otherwise specified in the Offering Document.

 

 

2.17            “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

 

2.18            “Fair Market Value” shall mean, as of any date, the value of a Share determined as follows: (a) if the Class A Common Stock is listed on any established stock exchange, its Fair Market Value will be the closing sales price for such Class A Common Stock as quoted on such exchange for such date, or if no sale occurred on such date, the last day preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; (b) if the Class A Common Stock is not traded on a stock exchange but is quoted on a national market or other quotation system, the closing sales price on such date, or if no sales occurred on such date, then on the last date preceding such date during which a sale occurred, as reported in The Wall Street Journal or another source the Administrator deems reliable; or (c) without an established market for the Class A Common Stock, the Administrator will determine the Fair Market Value in its discretion.

 

2.19            “Non-Section 423 Component” shall mean those Offerings under the Plan, together with the sub-plans, appendices, rules or procedures, if any, adopted by the Administrator as a part of this Plan, in each case, pursuant to which rights to purchase Shares during an Offering Period may be granted to Eligible Employees that need not satisfy the requirements for rights to purchase Shares granted pursuant to an “employee stock purchase plan” that are set forth under Section 423 of the Code.

 

2.20            “Offering” shall mean an offer under the Plan of a right to purchase Shares that may be exercised during an Offering Period as further described in Article IV hereof. Unless otherwise specified by the Administrator, Offerings under the Section 423 Component and the Non-Section 423 Component shall be treated as separate and distinct Offerings under separate and distinct plans, and each such Offering to the Eligible Employees of the Company or a Designated Subsidiary shall be deemed a separate and distinct Offering under a separate and distinct plan, even if the dates and other terms of the applicable Offering Periods of each such Offering are identical, and the provisions of the Plan will separately apply to each Offering. To the extent permitted by Treasury Regulation Section 1.423-2(a)(1), the terms of each separate Offering under the Section 423 Component need not be identical, provided that the terms of the Section 423 Component and an Offering thereunder together satisfy Treasury Regulation Section 1.423-2(a)(2) and (a)(3). To the extent the terms of any Offering under the Section 423 Component do not satisfy the requirements for rights to purchase Shares granted pursuant to an “employee stock purchase plan” as set forth under Section 423 of the Code, then the Plan and such Offering shall be deemed to be amended to accomplish the objectives of the terms as originally written to the fullest extent permitted by law and in compliance with Section 423 of the Code.

 

2.21            “Offering Document” shall have the meaning given to such term in Section 4.1.

 

2.22            “Offering Period” shall have the meaning given to such term in Section 4.1.

 

2.23            “Parent” shall mean any corporation, other than the Company, in an unbroken chain of corporations ending with the Company if, at the time of the determination, each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

 

2.24            “Participant” shall mean any Eligible Employee who has executed a subscription or enrollment agreement and been granted rights to purchase Shares pursuant to the Plan.

 

2.25            “Plan” shall mean this X-Energy, Inc. 2026 Employee Stock Purchase Plan, including both the Section 423 Component and Non-Section 423 Component and any other sub-plans or appendices hereto, as amended from time to time.

 

 

2.26            “Public Trading Date” shall mean the first date upon which the Class A Common Stock is listed (or approved for listing) upon notice of issuance on any securities exchange or designated (or approved for designation) upon notice of issuance as a national market security on an interdealer quotation system.

 

2.27            “Purchase Date” shall mean the last Trading Day of each Purchase Period, unless otherwise specified in the Offering Document.

 

2.28            “Purchase Period” shall refer to one or more periods within an Offering Period, as designated in the applicable Offering Document; provided, however, that, in the event no Purchase Period is designated by the Administrator in the applicable Offering Document, the Purchase Period for each Offering Period covered by such Offering Document shall be the same as the applicable Offering Period.

 

2.29            “Purchase Price” shall mean the purchase price designated by the Administrator in the applicable Offering Document (which purchase price, for purposes of the Section 423 Component, shall not be less than 85% of the Fair Market Value of a Share on the Enrollment Date or on the Purchase Date, whichever is lower); provided, however, that, in the event no purchase price is designated by the Administrator in the applicable Offering Document, the purchase price for the Offering Periods covered by such Offering Document shall be 85% of the Fair Market Value of a Share on the Enrollment Date or on the Purchase Date, whichever is lower; provided, further, that the Purchase Price may be adjusted by the Administrator pursuant to Article VIII and shall not be less than the par value of a Share.

 

2.30            “Section 423 Component” shall mean those Offerings under the Plan, together with the sub-plans, appendices, rules or procedures, if any, adopted by the Administrator as a part of this Plan, in each case, pursuant to which rights to purchase Shares during an Offering Period may be granted to Eligible Employees that are intended to satisfy the requirements for rights to purchase Shares granted pursuant to an “employee stock purchase plan” that are set forth under Section 423 of the Code. To the extent any provision of the Plan with respect to the Section 423 Component does not satisfy the requirements for rights to purchase Shares granted pursuant to an “employee stock purchase plan” as set forth under Section 423 of the Code, then the Plan shall be deemed to be amended to accomplish the objectives of the terms as originally written to the fullest extent permitted by law and in compliance with Section 423 of the Code.

 

2.31            “Securities Act” shall mean the Securities Act of 1933, as amended.

 

2.32            “Share” shall mean a share of Class A Common Stock.

 

2.33            “Subsidiary” shall mean any corporation, other than the Company, in an unbroken chain of corporations beginning with the Company if, at the time of the determination, each of the corporations other than the last corporation in an unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain; provided, however, that a limited liability company or partnership may be treated as a Subsidiary to the extent either (a) such entity is treated as a disregarded entity under Treasury Regulation Section 301.7701-3(a) by reason of the Company or any other Subsidiary that is a corporation being the sole owner of such entity, or (b) such entity elects to be classified as a corporation under Treasury Regulation Section 301.7701-3(a) and such entity would otherwise qualify as a Subsidiary. In addition, with respect to the Non-Section 423 Component, a Subsidiary shall include any corporate or non-corporate entity in which the Company has a direct or indirect equity interest or significant business relationship that constitutes a “parent” or “subsidiary” of the Company for purposes of Form S-8 of the Securities Act and whose employees are eligible to be offered securities registrable on Form S-8 of the Securities Act.

 

 

2.34            “Trading Day” shall mean a day on which national stock exchanges in the United States are open for trading.

 

Article III.
SHARES SUBJECT TO THE PLAN

 

3.1              Number of Shares. Subject to Article VIII, the aggregate number of Shares that may be issued pursuant to rights granted under the Plan shall be                Shares. In addition, subject to Article VIII, on the first day of each calendar year beginning on and January 1 of the first calendar year following the Effective Date and ending on and including January 1, 2036, the number of Shares available for issuance under the Plan shall be increased by that number of Shares equal to (a) a number of Shares equal to 0.5% of the aggregate number of shares of Class A Common Stock and Class B Common Stock outstanding on the final day of the immediately preceding calendar year or (b) such smaller number of Shares as determined by the Board. If any right granted under the Plan shall for any reason terminate without having been exercised, the Shares not purchased under such right shall again become available for issuance under the Plan. Notwithstanding anything in this Section 3.1 to the contrary, the number of Shares that may be issued or transferred pursuant to the rights granted under the Plan shall not exceed an aggregate of 50,000,000 Shares, subject to Article VIII. All or any portion of such maximum number of Shares may be issued under the Section 423 Component.

 

3.2              Shares Distributed. Any Shares distributed pursuant to the Plan may consist, in whole or in part, of authorized and unissued Class A Common Stock, treasury stock or Class A Common Stock purchased on the open market. Shares issued under the Plan will be shares of Class A Common Stock.

 

Article IV.
Offering Periods; Offering Documents; Purchase dates

 

4.1               Offering Periods. The Administrator may from time to time grant or provide for the grant of rights to purchase Shares under the Plan to Eligible Employees during one or more periods (each, an “Offering Period”) selected by the Administrator. The terms and conditions applicable to each Offering Period shall be set forth in an “Offering Document” adopted by the Administrator, which Offering Document shall be in such form and shall contain such terms and conditions as the Administrator shall deem appropriate. The Administrator shall establish in each Offering Document one or more Purchase Periods during such Offering Period during which rights granted under the Plan shall be exercised and purchases of Shares carried out during such Offering Period in accordance with such Offering Document and the Plan. The provisions of separate Offerings or Offering Periods under the Plan need not be identical.

 

4.2              Offering Documents. Each Offering Document with respect to an Offering Period shall specify (through incorporation of the provisions of this Plan by reference or otherwise):

 

(a)               the length of the Offering Period, which period shall not exceed 27 months;

 

(b)               the length of the Purchase Period(s) within the Offering Period;

 

 

(c)            in connection with each Offering Period that contains only one Purchase Period the maximum number of Shares that may be purchased by any Eligible Employee during such Offering Period, which, in the absence of a contrary designation by the Administrator, shall be 10,000 Shares;

 

(d)            in connection with each Offering Period that contains more than one Purchase Period, the maximum aggregate number of Shares which may be purchased by any Eligible Employee during each Purchase Period, which, in the absence of a contrary designation by the Administrator, shall be 10,000 Shares; and

 

(e)            such other provisions as the Administrator determines are appropriate, subject to the Plan.

 

Article V.
ELIGIBILITY AND PARTICIPATION

 

5.1            Eligibility. Any Eligible Employee who shall be employed by the Company or a Designated Subsidiary on a given Enrollment Date for an Offering Period shall be eligible to participate in the Plan during such Offering Period, subject to the requirements of this Article V and, for the Section 423 Component, the limitations imposed by Section 423(b) of the Code.

 

5.2            Enrollment in Plan.

 

(a)            Except as otherwise set forth herein or in an Offering Document or determined by the Administrator, an Eligible Employee may become a Participant in the Plan for an Offering Period by delivering a subscription or enrollment agreement to the Company by such time prior to the Enrollment Date for such Offering Period (or such other date specified in the Offering Document) designated by the Administrator and in such form as the Company provides.

 

(b)            Except as otherwise determined by the Administrator, each subscription or enrollment agreement shall designate a whole percentage of such Eligible Employee’s Compensation to be withheld by the Company or the Designated Subsidiary employing such Eligible Employee on each payday during the Offering Period as payroll deductions under the Plan. The designated percentage may not be less than 1% and may not be more than the maximum percentage specified by the Administrator in the applicable Offering Document (which percentage shall be 15% in the absence of any such designation). The payroll deductions made for each Participant shall be credited to an account for such Participant under the Plan and shall be deposited with the general funds of the Company.

 

(c)            A Participant may be allowed to decrease or increase the percentage of Compensation designated in his or her subscription or enrollment agreement, or may suspend his or her payroll deductions, at any time during an Offering Period (any such decrease, increase or suspension, a “Contribution Change”) subject to any limits as set forth in the applicable Offering Document (and in the absence of any specific designation by the Administrator, a Participant shall not be allowed any Contribution Changes during an Offering Period with respect to such Offering Period). Any such Contribution Change shall be effective with the first full payroll period following five business days after the Company’s receipt of the new subscription or enrollment agreement (or such shorter or longer period as may be specified by the Administrator in the applicable Offering Document). In the event a Participant suspends his or her payroll deductions, such Participant’s cumulative payroll deductions prior to the suspension shall remain in his or her account and shall be applied to the purchase of Shares on the next occurring Purchase Date and shall not be paid to such Participant unless he or she withdraws from participation in the Plan pursuant to Article VII.

 

 

(d)            Except as otherwise set forth in an Offering Document or determined by the Administrator, a Participant may participate in the Plan only by means of payroll deduction and may not make contributions by lump sum payment for any Offering Period.

 

5.3            Payroll Deductions. Except as otherwise provided in the applicable Offering Document or as determined by the Administrator, payroll deductions for a Participant shall commence on the first payday following the Enrollment Date and shall end on the last payday in the Offering Period to which the Participant’s authorization is applicable, unless sooner terminated by the Participant as provided in Article VII or suspended by the Participant or the Administrator as provided in Section 5.2 and Section 5.6, respectively. Notwithstanding any other provisions of the Plan to the contrary, in non-U.S. jurisdictions where participation in the Plan through payroll deductions is prohibited, the Administrator may provide that an Eligible Employee may elect to participate through contributions to the Participant’s account under the Plan in a form acceptable to the Administrator in lieu of or in addition to payroll deductions; provided, however, that, for any Offering under the Section 423 Component, the Administrator shall take into consideration any limitations under Section 423 of the Code when applying an alternative method of contribution.

 

5.4            Effect of Enrollment. A Participant’s completion of a subscription or enrollment agreement will enroll such Participant in the Plan for each subsequent Offering Period on the terms contained therein until the Participant either submits a new subscription or enrollment agreement, withdraws from participation under the Plan as provided in Article VII or otherwise becomes ineligible to participate in the Plan.

 

5.5            Limitation on Purchase of Shares. An Eligible Employee may be granted rights under the Section 423 Component only if such rights, together with any other rights granted to such Eligible Employee under “employee stock purchase plans” of the Company, any Parent or any Subsidiary, as specified by Section 423(b)(8) of the Code, do not permit such employee’s rights to purchase stock of the Company or any Parent or Subsidiary to accrue at a rate that exceeds $25,000 of the fair market value of such stock (determined as of the first day of the Offering Period during which such rights are granted) for each calendar year in which such rights are outstanding at any time. This limitation shall be applied in accordance with Section 423(b)(8) of the Code.

 

5.6            Suspension of Payroll Deductions. Notwithstanding the foregoing, to the extent necessary to comply with Section 423(b)(8) of the Code and Section 5.5 (with respect to the Section 423 Component) or the other limitations set forth in this Plan, a Participant’s payroll deductions may be suspended by the Administrator at any time during an Offering Period. The balance of the amount credited to the account of each Participant that has not been applied to the purchase of Shares by reason of Section 423(b)(8) of the Code, Section 5.5 or the other limitations set forth in this Plan shall be paid to such Participant in one lump sum in cash as soon as reasonably practicable after the Purchase Date.

 

5.7            Foreign Employees. In order to facilitate participation in the Plan, the Administrator may provide for such special terms applicable to Participants who are citizens or residents of a foreign jurisdiction, or who are employed by a Designated Subsidiary outside of the United States, as the Administrator may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Except as permitted by Section 423 of the Code, with respect to the Section 423 Component, such special terms may not be more favorable than the terms of rights granted under the Section 423 Component to Eligible Employees who are residents of the United States. Such special terms may be set forth in an addendum to the Plan in the form of an appendix or sub-plan (which appendix or sub-plan may be designed to govern Offerings under the Section 423 Component or the Non-Section 423 Component, as determined by the Administrator). To the extent that the terms and conditions set forth in an appendix or sub-plan conflict with any provisions of the Plan, the provisions of the appendix or sub-plan shall govern. The adoption of any such appendix or sub-plan shall be pursuant to Section 11.2(g). Without limiting the foregoing, the Administrator is specifically authorized to adopt rules and procedures, with respect to Participants who are foreign nationals or employed in non-U.S. jurisdictions, regarding the exclusion of particular Subsidiaries from participation in the Plan, eligibility to participate, the definition of Compensation, handling of payroll deductions or other contributions by Participants, payment of interest, conversion of local currency, data privacy security, payroll tax, withholding procedures, establishment of bank or trust accounts to hold payroll deductions or contributions.

 

 

Article VI.
grant and Exercise of rights

 

6.1            Grant of Rights. On the Enrollment Date of each Offering Period, each Eligible Employee participating in such Offering Period shall be granted a right to purchase the maximum number of Shares specified under Section 4.2, subject to the limits in Section 5.5, and shall have the right to buy, on each Purchase Date during such Offering Period (at the applicable Purchase Price), such number of whole Shares as is determined by dividing (a) such Participant’s payroll deductions accumulated prior to such Purchase Date and retained in the Participant’s account as of the Purchase Date, by (b) the applicable Purchase Price (rounded down to the nearest Share). The right shall expire on the earliest of: (x) the last Purchase Date of such Offering Period, (y) the last day of such Offering Period and (z) the date on which such Participant withdraws in accordance with Section 7.1 or Section 7.3.

 

6.2            Exercise of Rights. On each Purchase Date, each Participant’s accumulated payroll deductions and any other additional payments specifically provided for in the applicable Offering Document will be applied to the purchase of whole Shares, up to the maximum number of Shares permitted pursuant to the terms of the Plan and the applicable Offering Document, at the Purchase Price. No fractional Shares shall be issued upon the exercise of rights granted under the Plan, unless the Offering Document specifically provides otherwise. Any cash remaining after the purchase of Shares upon exercise of a purchase right (including any cash in lieu of fractional Shares) shall be returned to the Participant in one lump sum payment in a subsequent payroll check; provided, however, that the Administrator may provide in the applicable Offering Document that cash in lieu of fractional Shares should be carried forward and applied toward the purchase of whole Shares for the following Offering Period. Shares issued pursuant to the Plan may be evidenced in such manner as the Administrator may determine and may be issued in certificated form or issued pursuant to book-entry procedures.

 

6.3            Pro Rata Allocation of Shares. If the Administrator determines that, on a given Purchase Date, the number of Shares with respect to which rights are to be exercised may exceed (a) the number of Shares that were available for issuance under the Plan on the Enrollment Date of the applicable Offering Period, or (b) the number of Shares available for issuance under the Plan on such Purchase Date, the Administrator may in its sole discretion provide that the Company shall make a pro rata allocation of the Shares available for purchase on such Enrollment Date or Purchase Date, as applicable, in as uniform a manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all Participants for whom rights to purchase Shares are to be exercised pursuant to this Article VI on such Purchase Date, and shall either (i) continue all Offering Periods then in effect, or (ii) terminate any or all Offering Periods then in effect pursuant to Article IX. The Company may make pro rata allocation of the Shares available on the Enrollment Date of any applicable Offering Period pursuant to the preceding sentence, notwithstanding any authorization of additional Shares for issuance under the Plan by the Company’s stockholders subsequent to such Enrollment Date. The balance of the amount credited to the account of each Participant that has not been applied to the purchase of Shares shall be paid to such Participant, without interest, in one lump sum in cash as soon as reasonably practicable after the Purchase Date, or such earlier date as determined by the Administrator.

 

 

6.4            Withholding. At the time a Participant’s rights under the Plan are exercised, in whole or in part, or at the time some or all of the Shares issued under the Plan are disposed of, the Participant must make adequate provision for the Company’s and any applicable Designated Subsidiary’s foreign, federal, state, or other tax withholding obligations, if any, that arise upon the exercise of the right or the disposition of the Shares. At any time, the Company and any applicable Designated Subsidiary may, but shall not be obligated to, withhold from the Participant’s compensation the amount necessary for the Company or such Designated Subsidiary to meet applicable withholding obligations, including any withholding required to make available to the Company or such Designated Subsidiary any tax deductions or benefits attributable to sale or early disposition of Shares by the Participant.

 

6.5            Conditions to Issuance of Shares. The Company shall not be required to issue or deliver any certificate or certificates for, or make any book entries evidencing, Shares purchased upon the exercise of rights under the Plan prior to fulfillment of all of the following conditions:

 

(a)            The admission of such Shares to listing on all stock exchanges, if any, on which the Class A Common Stock is then listed;

 

(b)            The completion of any registration or other qualification of such Shares under any state or federal law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory body, that the Administrator shall, in its absolute discretion, deem necessary or advisable;

 

(c)            The obtaining of any approval or other clearance from any state or federal governmental agency that the Administrator shall, in its absolute discretion, determine to be necessary or advisable;

 

(d)            The payment to the Company of all amounts that it is required to withhold under federal, state or local law upon exercise of the rights, if any; and

 

(e)            The lapse of such reasonable period of time following the exercise of the rights as the Administrator may from time to time establish for reasons of administrative convenience.

 

Article VII.
WITHDRAWAL; CESSATION OF ELIGIBILITY

 

7.1            Withdrawal. A Participant may withdraw all but not less than all of the payroll deductions credited to his or her account and not yet used to exercise his or her rights under the Plan at any time by giving written notice to the Company in a form acceptable to the Company no later than two weeks prior to the end of the Offering Period or, if earlier, the end of the Purchase Period (or such shorter or longer period as may be specified by the Administrator in the Offering Document). All of the Participant’s payroll deductions credited to his or her account during the Offering Period not yet used to exercise his or her rights under the Plan shall be paid to such Participant as soon as reasonably practicable after receipt of notice of withdrawal and such Participant’s rights for the Offering Period shall be automatically terminated, and no further payroll deductions for the purchase of Shares shall be made for such Offering Period. If a Participant withdraws from an Offering Period, payroll deductions shall not resume at the beginning of the next Offering Period unless the Participant is an Eligible Employee and timely delivers to the Company a new subscription or enrollment agreement.

 

7.2            Future Participation. A Participant’s withdrawal from an Offering Period shall not have any effect upon his or her eligibility to participate in any similar plan that may hereafter be adopted by the Company or a Designated Subsidiary or in subsequent Offering Periods that commence after the termination of the Offering Period from which the Participant withdraws.

 

 

7.3            Cessation of Eligibility. Upon a Participant’s ceasing to be an Eligible Employee for any reason, he or she shall be deemed to have elected to withdraw from the Plan pursuant to this Article VII and the payroll deductions credited to such Participant’s account during the Offering Period shall be paid to such Participant or, in the case of his or her death, to the person or persons entitled thereto under Section 12.4, as soon as reasonably practicable, and such Participant’s rights for the Offering Period shall be automatically terminated. If a Participant transfers employment from the Company or any Designated Subsidiary participating in the Section 423 Component to any Designated Subsidiary participating in the Non-Section 423 Component, such transfer shall not be treated as a termination of employment under the Plan, but the Participant shall immediately cease to participate in the Section 423 Component; however, any contributions made for the Offering Period in which such transfer occurs shall be transferred to the Non-Section 423 Component, and such Participant shall immediately join the then-current Offering under the Non-Section 423 Component upon the same terms and conditions in effect for the Participant’s participation in the Section 423 Component, except for such modifications otherwise applicable for Participants in such Offering. A Participant who transfers employment from any Designated Subsidiary participating in the Non-Section 423 Component to the Company or any Designated Subsidiary participating in the Section 423 Component shall not be treated as terminating the Participant’s employment under the Plan and shall remain a Participant in the Non-Section 423 Component until the earlier of (i) the end of the current Offering Period under the Non-Section 423 Component or (ii) the Enrollment Date of the first Offering Period in which the Participant is eligible to participate following such transfer. Notwithstanding the foregoing, the Administrator may establish different rules to govern transfers of employment between entities participating in the Section 423 Component and the Non-Section 423 Component, consistent with the applicable requirements of Section 423 of the Code.

 

Article VIII.
Adjustments upon Changes in Stock

 

8.1            Changes in Capitalization. Subject to Section 8.3, in the event that the Administrator determines that any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), Change in Control, reorganization, merger, amalgamation, consolidation, combination, repurchase, recapitalization, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or sale or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, or other similar corporate transaction or event, as determined by the Administrator, affects the Common Stock such that an adjustment is determined by the Administrator to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under the Plan or with respect to any outstanding purchase rights under the Plan, the Administrator shall make equitable adjustments, if any, to reflect such change with respect to (a) the aggregate number and type of Shares (or other securities or property) that may be issued under the Plan (including, but not limited to, adjustments of the limitations in Section 3.1 and the limitations established in each Offering Document pursuant to Section 4.2 on the maximum number of Shares that may be purchased); (b) the class(es) and number of Shares and price per Share subject to outstanding rights; and (c) the Purchase Price with respect to any outstanding rights.

 

8.2            Other Adjustments. Subject to Section 8.3, in the event of any transaction or event described in Section 8.1 or any unusual or nonrecurring transactions or events affecting the Company, any affiliate of the Company, or the financial statements of the Company or any affiliate (including without limitation any Change in Control), or of changes in Applicable Law or accounting principles, the Administrator, in its discretion, and on such terms and conditions as it deems appropriate, is hereby authorized to take any one or more of the following actions whenever the Administrator determines that such action is appropriate in order to prevent the dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any right under the Plan, to facilitate such transactions or events or to give effect to such changes in laws, regulations or principles:

 

 

(a)            To provide for either (i) termination of any outstanding right in exchange for an amount of cash, if any, equal to the amount that would have been obtained upon the exercise of such right had such right been currently exercisable or (ii) the replacement of such outstanding right with other rights or property selected by the Administrator in its sole discretion;

 

(b)            To provide that the outstanding rights under the Plan shall be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar rights covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;

 

(c)            To make adjustments in the number and type of Shares (or other securities or property) subject to outstanding rights under the Plan and/or in the terms and conditions of outstanding rights and rights that may be granted in the future;

 

(d)            To provide that Participants’ accumulated payroll deductions may be used to purchase Shares prior to the next occurring Purchase Date on such date as the Administrator determines in its sole discretion and the Participants’ rights under the ongoing Offering Period(s) shall be terminated; and

 

(e)            To provide that all outstanding rights shall terminate without being exercised.

 

8.3            No Adjustment Under Certain Circumstances. Unless determined otherwise by the Administrator, no adjustment or action described in this Article VIII or in any other provision of the Plan shall be authorized to the extent that such adjustment or action would cause the Section 423 Component of the Plan to fail to satisfy the requirements of Section 423 of the Code.

 

8.4            No Other Rights. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any subdivision or consolidation of shares of stock of any class, the payment of any dividend, any increase or decrease in the number of shares of stock of any class or any dissolution, liquidation, merger, or consolidation of the Company or any other corporation. Except as expressly provided in the Plan or pursuant to action of the Administrator under the Plan, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of Shares subject to outstanding rights under the Plan or the Purchase Price with respect to any outstanding rights.

 

Article IX.
Amendment, modification and termination

 

9.1            Amendment, Modification and Termination. The Administrator may amend, suspend or terminate the Plan at any time and from time to time; provided, however, that approval of the Company’s stockholders shall be required to amend the Plan to: (a) increase the aggregate number, or change the type, of shares that may be sold pursuant to rights under the Plan under Section 3.1 (other than an adjustment as provided by Article VIII); (b) change the corporations or classes of corporations whose employees may be granted rights under the Plan; or (c) as otherwise required to comply with Applicable Law.

 

 

9.2            Certain Changes to Plan. Without stockholder consent and without regard to whether any Participant rights may be considered to have been adversely affected (and, with respect to the Section 423 Component of the Plan, after taking into account Section 423 of the Code), the Administrator shall be entitled to change or terminate the Offering Periods, limit the frequency and/or number of changes in the amount withheld from Compensation during an Offering Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by a Participant in order to adjust for delays or mistakes in the Company’s processing of payroll withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Shares for each Participant properly correspond with amounts withheld from the Participant’s Compensation, and establish such other limitations or procedures as the Administrator determines in its sole discretion to be advisable that are consistent with the Plan.

 

9.3            Actions In the Event of Unfavorable Financial Accounting Consequences. In the event the Administrator determines that the ongoing operation of the Plan may result in unfavorable financial accounting consequences, the Administrator may, in its discretion and, to the extent necessary or desirable, modify or amend the Plan to reduce or eliminate such accounting consequence including, but not limited to:

 

(a)            altering the Purchase Price for any Offering Period including an Offering Period underway at the time of the change in Purchase Price;

 

(b)            shortening any Offering Period so that the Offering Period ends on a new Purchase Date, including an Offering Period underway at the time of the Administrator action; and

 

(c)            allocating Shares.

 

Such modifications or amendments shall not require stockholder approval or the consent of any Participant.

 

9.4            Payments Upon Termination of Plan. Upon termination of the Plan, the balance in each Participant’s Plan account shall be refunded as soon as practicable after such termination, without any interest thereon, or the Offering Period may be shortened so that the purchase of Shares occurs prior to the termination of the Plan.

 

Article X.
TERM OF PLAN

 

The Plan shall be effective on the Effective Date. The effectiveness of the Plan shall be subject to approval of the Plan by the stockholders of the Company within 12 months following the date the Plan is first approved by the Board. No right may be granted under the Plan prior to such stockholder approval. No rights may be granted under the Plan during any period of suspension of the Plan or after termination of the Plan.

 

Article XI.
ADMINISTRATION

 

11.1          Administrator. Unless otherwise determined by the Board, the Administrator of the Plan shall be the Compensation and Culture Committee of the Board (or another committee or a subcommittee of the Board to which the Board delegates administration of the Plan) (such committee, the “Committee”). The Board may at any time vest in the Board any authority or duties for administration of the Plan.

 

 

11.2          Authority of Administrator. The Administrator shall have the power, subject to, and within the limitations of, the express provisions of the Plan:

 

(a)            To determine when and how rights to purchase Shares shall be granted and the provisions of each offering of such rights (which need not be identical).

 

(b)            To designate from time to time which Subsidiaries of the Company shall be Designated Subsidiaries, which designation may be made without the approval of the stockholders of the Company.

 

(c)            To impose a mandatory holding period pursuant to which Employees may not dispose of or transfer Shares purchased under the Plan for a period of time determined by the Administrator in its discretion.

 

(d)            To construe and interpret the Plan and rights granted under it, and to establish, amend and revoke rules and regulations for its administration. The Administrator, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan, in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective.

 

(e)            To amend, suspend or terminate the Plan as provided in Article IX.

 

(f)            Generally, to exercise such powers and to perform such acts as the Administrator deems necessary or expedient to promote the best interests of the Company and its Subsidiaries and to carry out the intent that the Plan be treated as an “employee stock purchase plan” within the meaning of Section 423 of the Code for the Section 423 Component.

 

(g)            The Administrator may adopt sub-plans applicable to particular Designated Subsidiaries or locations, which sub-plans may be designed to be outside the scope of Section 423 of the Code. The rules of such sub-plans may take precedence over other provisions of this Plan, with the exception of Section 3.1 hereof, but unless otherwise superseded by the terms of such sub-plan, the provisions of this Plan shall govern the operation of such sub-plan.

 

11.3          Decisions Binding. The Administrator’s interpretation of the Plan, any rights granted pursuant to the Plan, any subscription or enrollment agreement and all decisions and determinations by the Administrator with respect to the Plan are final, binding, and conclusive on all parties.

 

Article XII.
MISCELLANEOUS

 

12.1          Restriction upon Assignment. A right granted under the Plan shall not be transferable other than by will or the Applicable Laws of descent and distribution, and is exercisable during the Participant’s lifetime only by the Participant. Except as provided in Section 12.4 hereof, a right under the Plan may not be exercised to any extent except by the Participant. The Company shall not recognize and shall be under no duty to recognize any assignment or alienation of the Participant’s interest in the Plan, the Participant’s rights under the Plan or any rights thereunder.

 

12.2          Rights as a Stockholder. With respect to Shares subject to a right granted under the Plan, a Participant shall not be deemed to be a stockholder of the Company, and the Participant shall not have any of the rights or privileges of a stockholder, until such Shares have been issued to the Participant or his or her nominee following exercise of the Participant’s rights under the Plan. No adjustments shall be made for dividends (ordinary or extraordinary, whether in cash, securities, or other property) or distribution or other rights for which the record date occurs prior to the date of such issuance, except as otherwise expressly provided herein or as determined by the Administrator.

 

 

12.3          Interest. No interest shall accrue on the payroll deductions or contributions of a Participant under the Plan.

 

12.4          Designation of Beneficiary.

 

(a)            A Participant may, in the manner determined by the Administrator, file a written designation of a beneficiary who is to receive any Shares and/or cash, if any, from the Participant’s account under the Plan in the event of such Participant’s death subsequent to a Purchase Date on which the Participant’s rights are exercised but prior to delivery to such Participant of such Shares and cash. In addition, a Participant may file a written designation of a beneficiary who is to receive any cash from the Participant’s account under the Plan in the event of such Participant’s death prior to exercise of the Participant’s rights under the Plan. If the Participant is married and resides in a community property state, a designation of a person other than the Participant’s spouse as his or her beneficiary shall not be effective without the prior written consent of the Participant’s spouse.

 

(b)            Such designation of beneficiary may be changed by the Participant at any time by written notice to the Company. In the event of the death of a Participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such Participant’s death, the Company shall deliver such Shares and/or cash to the executor or administrator of the estate of the Participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such Shares and/or cash to the spouse or to any one or more dependents or relatives of the Participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.

 

12.5         Notices. All notices or other communications by a Participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.

 

12.6         Equal Rights and Privileges. Subject to Section 5.7, all Eligible Employees will have equal rights and privileges under the Section 423 Component so that the Section 423 Component of this Plan qualifies as an “employee stock purchase plan” within the meaning of Section 423 of the Code. Subject to Section 5.7, any provision of the Section 423 Component that is inconsistent with Section 423 of the Code will, without further act or amendment by the Company, the Board or the Administrator, be reformed to comply with the equal rights and privileges requirement of Section 423 of the Code. Eligible Employees participating in the Non-Section 423 Component need not have the same rights and privileges as other Eligible Employees participating in the Non-Section 423 Component or as Eligible Employees participating in the Section 423 Component.

 

12.7          Use of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions.

 

12.8          Reports. If required by Applicable Law, statements of account shall be given to Participants at least annually, which statements shall set forth the amounts of payroll deductions, the Purchase Price, the number of Shares purchased and the remaining cash balance, if any.

 

12.9          No Employment Rights. Nothing in the Plan shall be construed to give any person (including any Eligible Employee or Participant) the right to employment or service with (or to remain in the employ of) the Company, the Operating Company or any Parent or Subsidiary of the Company or the Operating Company or affect the right of the Company, the Operating Company or any such Parent or Subsidiary to terminate the employment of any person (including any Eligible Employee or Participant) at any time, with or without cause.

 

 

12.10        Notice of Disposition of Shares. Each Participant shall give prompt notice to the Company of any disposition or other transfer of any Shares purchased upon exercise of a right under the Section 423 Component of the Plan if such disposition or transfer is made: (a) within two years from the Enrollment Date of the Offering Period in which the Shares were purchased or (b) within one year after the Purchase Date on which such Shares were purchased. Such notice shall specify the date of such disposition or other transfer and the amount realized, in cash, other property, assumption of indebtedness or other consideration, by the Participant in such disposition or other transfer.

 

12.11        Governing Law. The Plan and any agreements hereunder shall be administered, interpreted and enforced under the internal laws of the State of Delaware without regard to conflicts of laws thereof or of any other jurisdiction.

 

12.12         Electronic Forms. To the extent permitted by Applicable Law and in the discretion of the Administrator, an Eligible Employee may submit any form or notice as set forth herein by means of an electronic form approved by the Administrator. Before the commencement of an Offering Period, the Administrator shall prescribe the time limits within which any such electronic form shall be submitted to the Administrator with respect to such Offering Period in order to be a valid election.

 

12.13        Section 409A. The Section 423 Component of the Plan and the rights to purchase Shares granted pursuant to Offerings thereunder are intended to be exempt from the application of Section 409A of the Code and the U.S. Department of Treasury Regulations and other interpretive guidance issued thereunder (collectively, “Section 409A”). Neither the Non-Section 423 Component nor any right to purchase Shares granted pursuant to an Offering thereunder is intended to constitute or provide for “nonqualified deferred compensation” within the meaning of Section 409A. Notwithstanding any provision of the Plan to the contrary, if the Administrator determines that any right to purchase Shares granted under the Plan may be or become subject to Section 409A or that any provision of the Plan may cause a right to purchase Shares granted under the Plan to be or become subject to Section 409A, the Administrator may adopt such amendments to the Plan and/or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions as the Administrator determines are necessary or appropriate to avoid the imposition of taxes under Section 409A, either through compliance with the requirements of Section 409A or with an available exemption therefrom.

 

12.14        Severability. Whenever possible, each provision of the Plan shall be interpreted in such manner as to be effective and valid under Applicable Law, and with respect to the Section 423 Component, to satisfy the requirements for rights to purchase Shares granted pursuant to an “employee stock purchase plan” as set forth under Section 423 of the Code, but if any provision of the Plan or any Offering shall be held by a court of competent jurisdiction to be prohibited by or invalid or unenforceable under applicable law, or with respect to the Section 423 Component, does not satisfy Section 423 of the Code, then (a) such provision shall be deemed to be amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law and (b) all other provisions of the Plan and Offering shall remain in full force and effect.

 

* * * * *

 

Exhibit 10.5

 

 

January 15, 2019

 

Clay Sell

 

VIA Email

 

Dear Clay,

 

On behalf of the X Energy, LLC Board I am most pleased to offer you the position of Chief Executive Officer reporting to me.

 

The following terms and conditions apply:

 

	1.	You will be paid a salary of $13,461 .54 bi-weekly, which is equivalent to $350,000 annually, plus standard company benefits.
	2.	This is full-time, exempt position working in our Headquarters Office in Rockville, Maryland.
	3.	Your start date will be January 21, 2019 or as mutually agreed upon between us.
	4.	You will participate in a Results Based Incentive (RBI) plan equal to twenty percent (20%) of the current year earned salary based upon the company achieving mutually agreeable goals. The RBI will be paid within 90 days of the calendar year end 2019.
	5.	You will participate in a to-be-formed Value Rewards Plan where you and other X Energy executives will be eligible to earn ownership interest in X Energy.
	6.	You will accrue vacation at X Energy’s highest accrual level.
	7.	This offer is contingent upon your execution of X Energy’s standard employment documents covering non-disclosure, non-solicitation and non-competition.
	8.	This offer remains valid for five business days from the date of this letter.

 

Please indicate your acceptance of this offer by signing and returning the enclosed copy of this letter, along with the attached documents, to me.

 

We look forward to a mutually rewarding association. Should you have any questions, please feel free to contact me at 240-375-3397.

 

Sincerely,

 

/s/ Kam Ghaffarian

Kam Ghaffarian

Executive Chairman of the Board

 

I accept the offer from X Energy as it is stated above.

 

/s/ Jeffrey Clay Sell		1/20/2019
{First Name} {Last Nmae}		{Date}

 

Jeffrey Clay Sell

 

 

www.x-energy.com

 

 

Exhibit 10.6

 

 

November 20, 2025

 

Daniel Gross

 

Via e-mail: daniel.andrew.gross@gmail.com

 

Dear Daniel,

 

I am very pleased to extend to you an offer to join X-energy (the “Company”) as Executive Vice President and Chief Financial Officer. We are looking forward to the valuable contributions we know you will make to our Company, and this offer is subject only to approval by our Board of Directors, which is a standard step in our hiring of key senior executives. We look forward to welcoming you to the team. If you decide to join us, the terms and conditions of your employment will be:

 

Employer: X-energy, LLC

Start Date: December 1, 2025, or earlier if possible

Reporting to: Chief Executive Officer (J. Clay Sell)

Office/Work Location: X-energy HQ, Rockville, MD; full-time on-site (minimum of four days per week)

Base Salary: $550,000 per year; $21,153.85 bi-weekly, payable in accordance with the Company's standard payroll practices and subject to all applicable tax withholdings.

 

Annual Bonus: As a participant in the Company's Short Term Incentive Program ("STIP"), your annual target incentive will be 75% of your base salary, with actual payment based on Company and individual performance in accordance with the applicable STIP plan. Your eligibility under the STIP begins with the 2026 performance year. To receive any STIP bonus, you must be an active employee in good standing at the time bonuses are paid, typically occurring in the first quarter following the performance year.

 

Long term Incentive Plan: You will be eligible to participate in X-energy’s Long-Term Incentive Plan (“LTIP”). You will receive a grant of approximately 1,850,000 Profits Interest Units (“PIUs”), subject to final valuation and confirmation by Deloitte. The PIUs will vest ratably over four years (25% annually), subject to your continued service and all terms of the LTIP and applicable award agreements. Future LTIP grants, if any, will be made solely at the discretion of the Board.

 

PIUs are speculative and may have no monetary value at issue. The value you may realize, if any, will depend on numerous factors—including the Company’s future performance, market conditions, capital structure, dilution, and the total number of PIUs outstanding at the time of any qualifying liquidity event. The Company makes no representation or warranty regarding the timing, likelihood, or terms of any liquidity event, or the future value of any PIU.

 

Executive Perquisites and Relocation: You will receive a monthly stipend for twelve (12) months, through December 31, 2026, which will cover reasonable expenses related to executive housing, travel, and other expenses associated with commuting to the company’s Maryland headquarters. Other business travel and expenses will be subject to the company’s travel and expense policy.

 

You agree to relocate within a reasable distance of the headquarters no later than February 1, 2027. To support your relocation, you will be eligible for up to $175,000 in relocation benefits and will work with our designated relocation management provider. Upon relocation, you must provide your updated physical address and required tax forms. Please note that relocation benefits reimbursed to you are considered taxable income under IRS rules.

 

www.x-energy.com

 

 

 

If you voluntarily resign from X-energy within twenty-four (24) months after your relocation, you will be required to repay all relocation benefits previously paid by the Company.

 

Universal Leave/Paid Holidays: You will accrue 20 days/160 hours of Universal Leave annually for vacation, illness, or time away from work for personal activities. X-energy provides paid holidays in accordance with the company holiday calendar which must be used in each calendar year. The paid holidays are considered floating holidays which can be used on the assigned holiday or taken on another day of the employee’s choice. New hires are eligible to utilize any paid holidays that remain on the company schedule after their start date for that given calendar year.

 

Other Benefits: Medical, dental, life and disability insurance, and other benefits are as set forth in X-energy’s Benefits Guide, which will be provided via email. We would be happy to answer any questions that you may have regarding these benefits.

 

Employment Classification: Full-time exempt

 

Please note that your employment with X-energy is for no specified period and constitutes at will employment. This offer is contingent upon the successful completion of our pre-employment process which will include a background check and education verification. Additional verifications, such as a credit check, may be required for positions with specialized data access. Once you accept this offer, you will receive an email from the background check administrator, the company that we use to conduct this process. The email will contain a link to our background check vendor’s secure website where you will be guided through the process and can safely enter the necessary information. Please watch for this email and submit your information to the background check vendor as soon as possible.

 

You will be required to sign the Company’s standard Confidentiality and Intellectual Property Assignment Agreement. In addition, for a period of twelve (12) months following the end of your employment, you agree not to directly or indirectly solicit or induce any employee, consultant, or customer of the Company to terminate or alter their relationship with the Company, and for a period of six (6) months following the end of your employment, you agree not to engage, whether as an employee, consultant, officer, or otherwise, in any business that competes with the Company’s business as conducted during your employment within the geographic areas where the Company conducts business. You also agree not to make or cause to be made any disparaging statements, written or oral, about the Company, its affiliates, officers, directors, or employees. Any unvested equity, bonus, or other incentive compensation paid or awarded to you under this offer letter will be subject to forfeiture or repayment to the extent required by applicable law, Company policy, or (i) in the event of a breach of these obligations, (ii) voluntary resignation or (iii) termination for cause, within twelve (12) months from each payment date.

 

This offer letter shall be governed by and construed in accordance with the laws of the state of Maryland, without giving effect to any choice of law or conflict of law provisions.

 

Daniel, we are genuinely excited about the prospect of you joining us as our next Executive Vice President and Chief Financial Officer, and I look forward to working closely with you in what I am confident will be a long, successful, and rewarding partnership. To accept this offer, please sign and date below, and return to rscheinman@x-energy.com.

 

www.x-energy.com

 

 

 

If you have any questions, please do not hesitate to contact me.

 

Sincerely,

 

//J. Clay Sell//

 

J. Clay Sell

Chief Executive Officer

 

I accept X-energy’s offer of employment, and I acknowledge that my title will be Executive Vice President and Chief Financial Officer with all of the responsibilities and requirements attendant to such position.

 

Signature:	/s/ Daniel Gross
Name (print):	Daniel Gross
Date:	November 22, 2025

 

X Energy, LLC is committed to hiring and retaining a diverse workforce. We are proud to be an Equal Opportunity Employer and make decisions without regard to race, color, religion, creed, sex, sexual orientation, gender identity, marital status, national origin, age, veteran status, disability, or any other protected class. We welcome the employment of women, minorities, veterans, and individuals with disabilities in our workforce. If you are in need of special assistance, please contact our Human Resources Department. X Energy, LLC participates in E-Verify. Please visit the links below for more information about E-Verify and the protection of your Right to Work.

 

Right To Work Link 

If you have the right to work, don't let anyone take it away (e-verify.gov)

 

E-Verify Participation Link

E-Verify Participation Poster English and Spanish

 

 

www.x-energy.com

 

 

Exhibit 10.7

 

 

September 22, 2025

 

Dragan Popovic

110 Parklea Dr

Toronto, On

Canada

 

Via e-mail: Draganpl010@gmail.com

 

Dear Dragan,

 

I am very pleased to extend to you an offer to join X-energy as our next Executive Vice President and Global Chief Operating Officer. We are looking forward to the valuable contributions we know you will make to our Company, and this offer is subject only to approval by our Board of Directors, which is a standard step in our hiring of key senior executives. We do not anticipate any issues with this approval and look forward to welcoming you to the team. If you decide to join us, the terms of your employment will be:

 

Employer: X-energy Canada

 

Start Date: October 27, 2025, or earlier if possible

 

Reporting to: Chief Executive Officer (J. Clay Sell)

 

Office/Work Location: X-energy Canada, Toronto, Ontario; full-time. While you will be expected to travel to the United States or internationally for meetings, training, and consultations incidental to your role, all substantive work and productive employment will be performed in Canada.

 

Base Salary: $450,000 USD (or CAD equivalent) per year; $17,308 bi-weekly

 

Annual Bonus: As a participant in X-energy's Short Term Incentive Program ("STIP"), your annual target incentive will be 75% of your base salary, attainment of which will be based on Company and personal performance and paid as a bonus each calendar year. Your STIP award for 2025 will be a guaranteed amount of $134,375 (comprised of a pro-rated STIP target amount of $84,375, plus an additional $50,000 incentive bonus). To receive your STIP bonus, you must be an active employee in good standing at the time bonuses are issued.

 

Long-term Incentive Plan: You are eligible to participate in X-energy's Long-term Incentive Plan ("LTIP"). As such, you will receive a grant of 600,000 Profits Interest Units ("PIUs"), which will vest ratably over four years, 25% per year. Future grants may be awarded at the Company's discretion, based on Company results and your individual performance.

 

The actual value of your PIUs will depend on many factors, including, but not limited to, the Company's future performance, market conditions, capital structure, and the total number of PIUs outstanding at the time of a qualifying liquidity event (e.g., an initial public offering or a sale of the Company). The Board retains full discretion over any future grants and the treatment of PIUs at exit.

 

www.x-energy.com

 

 

 

The following is provided solely as a hypothetical illustration and should not be relied upon as a prediction or guarantee of any particular outcome. This example is based on numerous assumptions, all of which may change materially without notice. It is not intended to establish a fair market value for tax purposes, nor does it create any obligation on the part of the Company to achieve any particular valuation or to undertake any specific transaction.

 

Based on a recent value analysis conducted by our outside consultants, if the Company were to achieve a $10 billion exit value, the current estimated value of one PIU could be approximately $28.00. Under that purely hypothetical scenario, 600,000 PIUs could have a value of approximately $16,800,000. Actual results, including the value (if any) realized for your PIUs, may differ significantly from this example. All PIUs will remain subject to the terms, conditions, and restrictions set forth in the governing plan documents and award agreements, which shall control in all respects.

 

Travel, Visa Sponsorship, and Relocation Expectations. You are currently a citizen of Canada. Should it be necessary, you agree to cooperate fully with all efforts to obtain a work visa authorizing your employment in the United States. Unless and until such visa is issued, all substantive work and productive employment shall be performed in Canada. Notwithstanding the foregoing, in your capacity as Global Chief Operating Officer, you will be required to travel to the Company's headquarters in Maryland, other locations within the United States, and international sites as necessary for meetings, training, and consultations incidental to your role overseeing global operations.

 

If deemed necessary, the Company will cover your legal and filing expenses associated with obtaining and maintaining any required U.S. work authorization, and, if applicable, U.S. lawful permanent residency ("green card") or U.S. citizenship. You acknowledge that in this scenario, the expectation will be that you will take all reasonable steps, with company support, to obtain U.S. permanent residency and, if eligible and willing, U.S. citizenship within a mutually agreed timeframe. Upon issuance of the requisite work visa, you shall commence employment with X-energy LLC in the United States and shall relocate, as soon as reasonably practicable, to a residence within reasonable commuting distance of the Company's corporate headquarters in the MD/DC/VA metropolitan area.

 

The Company shall be financially responsible for the following:

 

	·	Reasonable travel (including commuting and lodging) expenses incurred from your current residence until relocation;
	·	If applicable, relocation expenses up to $135,000, which shall constitute taxable income, subject to applicable tax withholding and reporting requirements. You shall be required to update your physical address and tax forms upon relocation; and
	·	A reasonable number of house-hunting trips for you and your spouse.

 

If you resign within 24 months of relocation, you must repay all relocation expenses.

 

www.x-energy.com

 

 

 

Universal Leave/Paid Holidays: You will accrue 20 days/160 hours of Universal Leave annually for vacation, illness, or time away from work for personal activities. X-energy provides ten (10) paid holidays which must be used in each calendar year. The ten (10) paid holidays are considered floating holidays which can be used on the assigned holiday or taken on another day of the employee's choice. New hires are eligible to utilize any paid holidays that remain on the company schedule after their start date for that given calendar year.

 

Other Benefits: Medical, dental, life and disability insurance, and other benefits are as set forth in X-energy's Benefits Guide, which will be provided via email. We would be happy to answer any questions that you may have regarding these benefits.

 

Employment Classification: Full-time exempt

 

Please note that your employment with X-energy Canada is for no specified period and constitutes at will employment. This offer is contingent upon the successful completion of our pre-employment process which will include a background check and education verification. Additional verifications, such as a credit check, may be required for positions with specialized data access. Once you accept this offer, you will receive an email from ClearStar, the company that we use to conduct this process. The email will contain a link to ClearStar's secure website where you will be guided through the process and can safely enter the necessary information. Please watch for this email and submit your information to ClearStar as soon as possible.

 

Dragan, I am genuinely excited about the prospect of you joining us as our next Executive Vice President and Global Chief Operating Officer, and I look forward to working closely with you in what I am confident will be a long, successful, and rewarding partnership. To accept this offer, please sign and date below, and return

 

If you have any questions, please do not hesitate to contact me.

 

Sincerely,

 

//J. Clay Sell//

 

J. Clay Sell

Chief Executive Officer

 

www.x-energy.com

 

 

 

I accept X-energy's offer of employment, and I acknowledge that my title will be Executive Vice President and Global Chief Operating Officer with all of the responsibilities and requirements attendant to such position.

 

Signature:	/s/ Dragan Popovic
Name (print):	Dragan Popovic
Date:	Sept 22, 2025

 

X energy, LLC and it's affiliated companies, are committed to hiring and retaining a diverse workforce. We are proud to be an Equal Opportunity Employer and make decisions without regard to race, color, religion, creed, sex, sexual orientation, gender identity, marital status, national origin, age, veteran status, disability, or any other protected class. We welcome the employment of women, minorities, veterans, and individuals with disabilities in our workforce. If you are in need of special assistance, please contact our Human Resources Department.

 

X Energy, LLC and it's affiliated entities, participates in E-Verify. Please visit the links below for more information about E-Verify and the protection of your Right to Work.

 

Right To Work Link

If you have the right to work, don’t let anyone take it away (e-verify.gov)

 

E-Verify Participation Link

E-Verify Participation Poster English and Spanish

 

www.x-energy.com

 

 

Exhibit 10.8

 

X-Energy, Inc.

 

NON-EMPLOYEE DIRECTOR COMPENSATION PROGRAM

 

Eligible Directors (as defined below) on the board of directors (the “Board”) of X-Energy, Inc. (the “Company”) shall be eligible to receive cash and equity compensation as set forth in this Non-Employee Director Compensation Program (this “Program”). The cash and equity compensation described in this Program shall be paid or be made, as applicable, automatically as set forth herein and without further action of the Board, to each member of the Board who is not an employee of the Company or any of its parents, affiliates or subsidiaries (each, an “Eligible Director”), unless such member is determined by the Board to not be an Eligible Director or unless such Eligible Director declines the receipt of such cash or equity compensation by written notice to the Company.

 

This Program shall become effective upon the closing of the initial public offering of the Company’s Class A common stock (the “Effective Date”) and shall remain in effect until it is revised or rescinded by further action of the Board. This Program may be amended, modified or terminated by the Board at any time in its sole discretion. No Eligible Director shall have any rights hereunder, except with respect to equity awards granted pursuant to Section ‎2 of this Program.

 

1.             Cash Compensation.

 

a.             Annual Retainers. Each Eligible Director shall be eligible to receive an annual cash retainer of $80,000 for service on the Board.

 

b.             Additional Committee Chair Annual Retainers. An Eligible Director serving as a member of a Committee (other than as Chair of such Committee) shall not be eligible to receive an additional annual retainer for such service. An Eligible Director serving as Chair of a Committee or as Non-Executive Chair of the Board shall be eligible to receive the following additional annual retainers, as applicable:

 

(i)             Audit Committee. An Eligible Director serving as Chair of the Audit Committee shall be eligible to receive an additional annual retainer of $25,000 for such service.

 

(ii)            Compensation & Culture Committee. An Eligible Director serving as Chair of the Compensation & Culture Committee shall be eligible to receive an additional annual retainer of $20,000 for such service.

 

(iii)           Nominating and Corporate Governance Committee. An Eligible Director serving as Chair of the Nominating and Corporate Governance Committee shall be eligible to receive an additional annual retainer of $15,000 for such service.

 

(iv)         Non-Executive Chair. An Eligible Director serving as non-Executive Chair of the Board shall be receive an additional annual retainer of $50,000 for such service.

 

2.             Payment of Retainers. The annual cash retainers described in Section ‎1 shall be earned on a quarterly basis based on a calendar quarter and shall be paid by the Company in arrears not later than 30 days following the end of each calendar quarter. In the event an Eligible Director does not serve as a director, or in the applicable positions described in Section ‎1.b, for an entire calendar quarter, the retainer paid to such Eligible Director shall be prorated for the portion of such calendar quarter actually served as a director, or in such position, as applicable.

 

 

3.             Equity Compensation.

 

a.             General. Eligible Directors shall be granted the equity awards described below without further action from the Board. The awards described below shall be granted under and shall be subject to the terms and provisions of the Company’s 2026 Equity Incentive Plan or any other applicable Company equity incentive plan then-maintained by the Company (such plan, as may be amended from time to time, the “Equity Plan”) and may be granted subject to the execution and delivery of award agreements, including attached exhibits, in substantially the forms approved by the Board prior to or in connection with such grants. All applicable terms of the Equity Plan apply to this Program as if fully set forth herein, and all grants of equity awards hereby are subject in all respects to the terms of the Equity Plan. Capitalized terms in this Section ‎3 not otherwise defined herein shall have the meanings ascribed to them in the Equity Plan.

 

b.             2026 Awards. An Eligible Director who is serving on the Board as of the Effective Date shall be granted a Restricted Stock Unit award (the “2026 Award”). Each 2026 Award shall be granted on the later of (i) the date on which the Form S-8 Registration Statement with respect to the Company’s Class A common stock issuance under the Equity Plan becomes effective and (ii) the Effective Date. The number of Restricted Stock Units subject to a 2026 Award will be determined by dividing $150,000 (or, solely with respect to the Non-Executive Chair of the Board as of such Annual Meeting, $200,000) by the price per share to the public of the Company’s Class A common stock as determined on the pricing date of the Company’s initial public offering. Each 2026 Award shall vest in full on the earlier to occur of (x) the one-year anniversary of the Effective Date and (y) the date of the Annual Meeting (as defined below) for calendar year 2027, subject to continued service through the applicable vesting date.

 

c.             Annual Awards. An Eligible Director who is serving on the Board as of the date of the annual meeting of the Company’s stockholders (each annual meeting, an “Annual Meeting”) each calendar year beginning with calendar year 2027 shall be granted a Restricted Stock Unit award with a value of $150,000 (or, solely with respect to the Non-Executive Chair of the Board as of such Annual Meeting, $200,000) (an “Annual Award,” and together with the 2026 Award, the “Equity Awards”). The number of Restricted Stock Units subject to an Annual Award will be determined by dividing $150,000 (or $200,000, as applicable) by the closing price for the Company’s Class A common stock on the applicable grant date. Each Annual Award shall be granted on the date of the applicable Annual Meeting, and shall vest in full on the earlier to occur of (x) the one-year anniversary of the applicable grant date and (y) the date of the next Annual Meeting following the grant date, subject to continued service through the applicable vesting date.

 

d.             Accelerated Vesting Events. Notwithstanding the foregoing, an Eligible Director’s Equity Award(s) shall vest in full immediately prior to the occurrence of a Change in Control, to the extent outstanding at such time.

 

4.              Compensation Limits. Notwithstanding anything to the contrary in this Program, all compensation payable under this Program will be subject to any limits on the maximum amount of non-employee Director compensation set forth in the Equity Plan, as in effect from time to time.

 

 

*****

 

 

 

Exhibit 10.9

 

INDEMNIFICATION And Advancement AGREEMENT

 

This Indemnification and Advancement Agreement (this “Agreement”) is made as of [ ⬤ ], 2026 by and between X-Energy, Inc., a Delaware corporation (the “Company”), and ______________, [a member of the Board of Directors/an officer] of the Company (“Indemnitee”). This Agreement supersedes and replaces any and all previous Agreements between the Company and Indemnitee covering indemnification and advancement of expenses.

 

RECITALS

 

WHEREAS, the Board of Directors of the Company (the “Board”) believes that highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers, or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification and advancement of expenses against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;

 

WHEREAS, the Board has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Company’s Bylaws and Certificate of Incorporation require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”). The Bylaws, the Certificate of Incorporation, and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and its directors, officers, and other persons with respect to indemnification and advancement of expenses;

 

WHEREAS, the uncertainties relating to such insurance, to indemnification, and to advancement of expenses may increase the difficulty of attracting and retaining such persons;

 

WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

 

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;

 

WHEREAS, this Agreement is a supplement to, and in furtherance of, the Bylaws, the Certificate of Incorporation and any resolutions adopted pursuant thereto, as well as any rights of Indemnitee under any directors’ and officers’ liability insurance policy, and is not a substitute therefor, and does not diminish or abrogate any rights of Indemnitee thereunder; and

 

WHEREAS, Indemnitee does not regard the protection available under the Bylaws, the Certificate of Incorporation, and available insurance as adequate in the present circumstances, and may not be willing to serve or continue to serve as a director or officer of the Company without adequate additional protection, and the Company desires Indemnitee to serve or continue to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified and be advanced expenses.

 

 

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

 

Section 1.               Services to the Company. Indemnitee agrees to serve as a director or officer of the Company. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law). This Agreement does not create any obligation on the Company to continue Indemnitee in such position and is not an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.

 

Section 2.               Definitions. As used in this Agreement:

 

(a)            “Agent” means any person who is authorized by the Company or an Enterprise to act for or represent the interests of the Company or an Enterprise, respectively.

 

(b)           A “Change in Control” occurs upon the earliest to occur after the date of this Agreement of any of the following events:

 

i.              Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;

 

ii.             Change in Board of Directors. During any period of two (2) consecutive years (not including any period prior to the execution of this Agreement), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 2(b)(i), 2(b)(iii) or 2(b)(iv) of this Agreement) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board;

 

iii.            Corporate Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;

 

iv.            Liquidation. The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and

 

v.             Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.

 

 

vi.            For purposes of this Section 2(b), the following terms have the following meanings:

 

1

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

 

2

“Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any entity owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

 

3

“Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity.

 

(c)            “Corporate Status” describes the status of a person who is or was acting as a director, officer, employee, or Agent of the Company or an Enterprise.

 

(d)            “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

 

(e)            “Enterprise” means any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is or was serving at the request of the Company as a director, officer, employee, or Agent.

 

(f)            “Expenses” includes all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees and other costs of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements, obligations, or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 14(d) of this Agreement only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. Expenses, however, do not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

 

(g)            “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements) or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees and expenses of the Independent Counsel.

 

 

(h)            “Proceeding” includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, regulatory, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is, or will be involved as a party, potential party, non-party witness, or otherwise by reason of Indemnitee’s Corporate Status or by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement. A Proceeding also includes a situation the Indemnitee believes in good faith may lead to, or culminate in, the institution of a Proceeding.

 

Section 3.               Indemnity in Third-Party Proceedings. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with, or in respect of, such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue, or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that Indemnitee’s conduct was unlawful.

 

Section 4.               Indemnity in Proceedings by or in the Right of the Company. The Company will indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company. The Company will not indemnify Indemnitee for Expenses under this Section 4 related to any claim, issue, or matter in a Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Court of Chancery of the state of Delaware (the “Delaware Court”) or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.

 

Section 5.               Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding to the extent that Indemnitee is successful, on the merits or otherwise. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues, or matters in such Proceeding, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law. For purposes of this Section 5 and without limitation, the termination of any claim, issue, or matter in such a Proceeding by dismissal, with or without prejudice, will be deemed to be a successful result as to such claim, issue, or matter.

 

 

Section 6.                Indemnification for Expenses of a Witness. To the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding to which Indemnitee is not a party but to which Indemnitee is a witness, deponent, interviewee, or otherwise asked to participate or provide information.

 

Section 7.               Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company will indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

 

Section 8.               Additional Indemnification. Notwithstanding any limitation in Sections 3, 4, or 5 of this Agreement, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law (including but not limited to, the DGCL and any amendments to or replacements of the DGCL adopted after the date of this Agreement that expand the Company’s ability to indemnify its officers, directors, employees or Agents) if Indemnitee is a party to, or threatened to be made a party to, any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor).

 

Section 9.               Exclusions. Notwithstanding any provision in this Agreement, the Company is not obligated under this Agreement to indemnify Indemnitee for:

 

(a)            for any amount actually paid to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 15(b) of this Agreement and except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision;

 

(b)            an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law;

 

(c)            reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act);

 

(d)            reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation and culture committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or

 

(e)            any Proceeding initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.

 

 

Section 10.             Advances of Expenses.

 

(a)            The Company will advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with:

 

i.              any Proceeding (or any part of any Proceeding) not initiated by Indemnitee; or

 

ii.             any Proceeding (or any part of any Proceeding) initiated by Indemnitee if:

 

1            the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to obtain indemnification or advancement of Expenses from the Company or Enterprise, including a Proceeding initiated pursuant to Section 14 of this Agreement, or

 

2            the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation.

 

(b)            The Company will advance the Expenses within thirty (30) days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding eligible for advancement of expenses.

 

(c)            Advances will be unsecured and interest free. Indemnitee hereby undertakes to repay any amounts so advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company, thus Indemnitee qualifies for advances upon the execution of this Agreement and delivery to the Company. No other form of undertaking is required other than the execution of this Agreement. The Company will make advances without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.

 

Section 11.             Procedure for Notification of Claim for Indemnification or Advancement.

 

(a)            Indemnitee will notify the Company in writing of any Proceeding with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. Indemnitee will include in the written notification to the Company a description of the nature of the Proceeding and the facts underlying the Proceeding and provide such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. Indemnitee’s failure to notify the Company will not relieve the Company from any obligation it may have to Indemnitee under this Agreement, and any delay in so notifying the Company will not constitute a waiver by Indemnitee of any rights under this Agreement. The Chief Legal Officer of the Company will, promptly upon receipt of such a request for indemnification or advancement, advise the Board in writing that Indemnitee has requested indemnification or advancement.

 

(b)            The Company will be entitled to participate in the Proceeding at its own expense.

 

 

Section 12.             Procedure Upon Application for Indemnification.

 

(a)            Unless a Change of Control has occurred, the determination of Indemnitee’s entitlement to indemnification will be made:

 

i.              by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;

 

ii.             by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board; or

 

iii.            if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by written opinion provided by Independent Counsel selected by the Board.

 

(b)            If a Change in Control has occurred, the determination of Indemnitee’s entitlement to indemnification will be made by written opinion provided by Independent Counsel selected by Indemnitee (unless Indemnitee requests such selection be made by the Board).

 

(c)            The party selecting Independent Counsel pursuant to Sections 12(a)(iii) or (b) of this Agreement will provide written notice of the selection to the other party. The notified party may, within ten (10) days after receiving written notice of the selection of Independent Counsel, deliver to the selecting party a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection will set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected will act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) of this Agreement and the final disposition of the Proceeding, Independent Counsel has not been selected or, if selected, any objection to such selection has not been resolved, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by such court or by such other person as such court designates. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel will be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

 

(d)            Indemnitee will cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons, or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company will advance and pay any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making the indemnification determination irrespective of the determination as to Indemnitee’s entitlement to indemnification and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing of the determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied and providing a copy of any written opinion provided to the Board by Independent Counsel.

 

(e)            If it is determined that Indemnitee is entitled to indemnification, the Company will make payment to Indemnitee within thirty (30) days after such determination.

 

 

Section 13.             Presumptions and Effect of Certain Proceedings.

 

(a)            In making a determination with respect to entitlement to indemnification under this Agreement, the person, persons, or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper under the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

 

(b)            If the determination of the Indemnitee’s entitlement to indemnification has not been made pursuant to Section 12 of this Agreement within sixty (60) days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 11(a) of this Agreement and (ii) the final disposition of the Proceeding for which Indemnitee requested Indemnification (the “Determination Period”), the requisite determination of entitlement to indemnification will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee will be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification or (ii) a prohibition of such indemnification under applicable law. The Determination Period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, the Determination Period will not apply if the determination of entitlement to indemnification is to be made by Independent Counsel.

 

(c)            The termination of any Proceeding or of any claim, issue, or matter therein by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.

 

(d)            For purposes of any determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted based on (i) the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, (ii) information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, (iii) the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or (iv) information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Indemnitee will be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) are not exclusive and do not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

 

 

(e)            The knowledge and/or actions, or failure to act, of any other person affiliated with the Company or an Enterprise (including, but not limited to, a director, officer, trustee, partner, managing member, Agent or employee) may not be imputed to Indemnitee for purposes of determining Indemnitee’s right to indemnification under this Agreement.

 

Section 14.             Remedies of Indemnitee.

 

(a)            Indemnitee may commence litigation against the Company in the Delaware Court to obtain indemnification or advancement of Expenses provided by this Agreement in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company does not advance Expenses pursuant to Section 10 of this Agreement, (iii) the determination of entitlement to indemnification is not made pursuant to Section 12 of this Agreement within the Determination Period, (iv) the Company does not indemnify Indemnitee pursuant to Section 5 or 6 or the second to last sentence of Section 12(d) of this Agreement within thirty (30) days after receipt by the Company of a written request therefor, (v) the Company does not indemnify Indemnitee pursuant to Section 3, 4, 7, or 8 of this Agreement within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee must commence such Proceeding seeking an adjudication or an award in arbitration within one hundred and eighty (180) days following the date on which Indemnitee first has the right to commence such Proceeding pursuant to this Section 14(a); provided, however, that the foregoing clause does not apply in respect of a Proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 5 of this Agreement. The Company will not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

 

(b)            If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 will be conducted in all respects as a de novo trial or arbitration on the merits and Indemnitee may not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company will have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and will not introduce evidence of the determination made pursuant to Section 12 of this Agreement.

 

(c)            If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is entitled to indemnification, the Company will be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14 unless (i) a made of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with Indemnitees’ request for indemnification, or (ii) the Company is prohibited from indemnifying Indemnitee under applicable law.

 

(d)            The Company is, to the fullest extent not prohibited by law, precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding, or enforceable and will stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

 

(e)            It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement, or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise, because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee under this Agreement. The Company, to the fullest extent permitted by law, will (within thirty (30) days after receipt by the Company of a written request therefor) advance to Indemnitee such Expenses which are incurred by Indemnitee in connection with a Proceeding concerning this Agreement, Indemnitee’s other rights to indemnification or advancement of Expenses from the Company, or concerning any directors’ and officers’ liability insurance policies maintained by the Company, and will indemnify Indemnitee against any and all such Expenses unless the court determines that Indemnitee’s claims in such action were made in bad faith or frivolous, or that the Company is prohibited by law from indemnifying Indemnitee for such Expenses.

 

 

Section 15.             Non-exclusivity; Survival of Rights; Insurance; Subrogation.

 

(a)            The indemnification and advancement of Expenses provided by this Agreement are not exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders, a resolution of the board of directors, or otherwise. The indemnification and advancement of Expenses provided by this Agreement may not be limited or restricted by any amendment, alteration or repeal of this Agreement in any way with respect to any action taken or omitted by Indemnitee in Indemnitee’s Corporate Status occurring prior to any amendment, alteration or repeal of this Agreement. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Bylaws, the Certificate of Incorporation, or this Agreement, it is the intent of the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy is cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other right or remedy.

 

(b)            The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and/or insurance provided by one or more other Persons with whom or which Indemnitee may be associated. The relationship between the Company and such other Persons, other than an Enterprise, with respect to Indemnitee’s rights to indemnification, advancement of Expenses, and insurance is described by this subsection, subject to the provisions of subsection (d) of this Section 15 with respect to a Proceeding concerning Indemnitee’s Corporate Status with an Enterprise.

 

i.              The Company hereby acknowledges and agrees:

 

1)            the Company’s obligations to Indemnitee are primary and any obligation of any other Persons, other than an Enterprise, are secondary (i.e., the Company is the indemnitor of first resort) with respect to any request for indemnification or advancement of Expenses made pursuant to this Agreement concerning any Proceeding;

 

2)            the Company is primarily liable for all indemnification or advancement of Expenses obligations for any Proceeding, whether created by law, the Bylaws, the Certificate of Incorporation, contract (including this Agreement) or otherwise;

 

3)            any obligation of any other Persons with whom or which Indemnitee may be associated to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any proceeding are secondary to the Company’s obligations;

 

4)            the Company will indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other Person with whom or which Indemnitee may be associated or an insurer of any such Person; and

 

 

ii.             the Company irrevocably waives, relinquishes and releases (A) any other Person with whom or which Indemnitee may be associated from any claim of contribution, subrogation, reimbursement, exoneration or indemnification, or any other recovery of any kind in respect of amounts paid by the Company to Indemnitee pursuant to this Agreement and (B) any right to participate in any claim or remedy of Indemnitee against any Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right.

 

iii.            In the event any other Person with whom or which Indemnitee may be associated or their insurers advances or extinguishes any liability or loss for Indemnitee, the payor has a right of subrogation against the Company or its insurers for all amounts so paid which would otherwise be payable by the Company or its insurers under this Agreement. In no event will payment by any other Person with whom or which Indemnitee may be associated or their insurers affect the obligations of the Company hereunder or shift primary liability for the Company’s obligation to indemnify or advance Expenses to any other Person with whom or which Indemnitee may be associated.

 

iv.            Any indemnification or advancement of Expenses provided by any other Person with whom or which Indemnitee may be associated is specifically in excess over the Company’s obligation to indemnify and advance Expenses or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Company.

 

(c)            To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or Agents of the Company, the Company will obtain a policy or policies covering Indemnitee to the maximum extent of the coverage available for any such director, officer, employee or Agent under such policy or policies, including coverage in the event the Company does not or cannot, for any reason, indemnify or advance Expenses to Indemnitee as required by this Agreement. If, at the time of the receipt of a notice of a claim pursuant to this Agreement, the Company has director and officer liability insurance in effect, the Company will give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company will thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. Indemnitee agrees to assist the Company’s efforts to cause the insurers to pay such amounts and will comply with the terms of such policies, including selection of approved panel counsel, if required.

 

(d)            The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee for any Proceeding concerning Indemnitee’s Corporate Status with an Enterprise will be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise. The Company and Indemnitee intend that any such Enterprise (and its insurers) be the indemnitor of first resort with respect to indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise. The Company’s obligation to indemnify and advance Expenses to Indemnitee is secondary to the obligations the Enterprise or its insurers owe to Indemnitee. Indemnitee agrees to take all reasonably necessary and desirable action to obtain from an Enterprise indemnification and advancement of Expenses for any Proceeding related to, or arising from, Indemnitee’s Corporate Status with such Enterprise.

 

 

(e)            In the event of any payment made by the Company under this Agreement, the Company will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any Enterprise or its insurance carrier. Indemnitee will execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

 

Section 16.             Duration of Agreement. The indemnification and advancement of Expenses rights provided by or granted pursuant to this Agreement are (i) binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), (ii) continue as to an Indemnitee who has ceased to be a director, officer, employee or Agent of the Company or of any other Enterprise, and (iii) inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.

 

Section 17.             Severability. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and will remain enforceable to the fullest extent permitted by law; (b) such provision or provisions will be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested thereby.

 

Section 18.             Interpretation. Any ambiguity in the terms of this Agreement will be resolved in favor of Indemnitee and in a manner to provide the maximum indemnification and advancement of Expenses permitted by law. The Company and Indemnitee intend that this Agreement provide to the fullest extent permitted by law for indemnification and advancement of Expenses in excess of that expressly provided, without limitation, by the Certificate of Incorporation, the Bylaws, vote of the Company’s stockholders or Disinterested Directors, or applicable law.

 

Section 19.             Enforcement.

 

(a)            The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director, officer, employee, or Agent of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving or continuing to serve as director, officer, employee, or Agent of the Company.

 

(b)            This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws, any directors’ and officers’ insurance maintained by the Company, and applicable law, is not a substitute therefor, and does not diminish or abrogate any rights of Indemnitee thereunder.

 

Section 20.             Modification and Waiver. No supplement, modification or amendment of this Agreement is binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement will be deemed to constitute a waiver of any other provision of this Agreement nor will any waiver constitute a continuing waiver.

 

 

Section 21.             Notice by Indemnitee. Indemnitee agrees to promptly notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company does not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.

 

Section 22.             Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given if (a) delivered by hand to the other party, (b) sent by reputable overnight courier to the other party or (c) sent by facsimile transmission or electronic mail, with receipt of oral confirmation that such communication has been received:

 

(a)            If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee provides to the Company.

 

(b)            If to the Company to:

 

X-Energy, Inc.

801 Thompson Avenue, Suite 400
Rockville, MD 20852

Attention: Steve Miller

Email:     smiller@x-energy.com

 

or to any other address as may have been furnished to Indemnitee by the Company.

 

Section 23.             Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, will contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (a) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (b) the relative fault of the Company (and its directors, officers, employees and Agents) and Indemnitee in connection with such event(s) and/or transaction(s).

 

Section 24.             Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties are governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (a) agree that any action, claim, or proceeding between the parties arising out of or in connection with this Agreement may be brought only in the Delaware Court and not in any other state or federal court in the United States of America or any court in any other country, (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action, claim, or proceeding arising out of or in connection with this Agreement, (c) waive any objection to the laying of venue of any such action, claim, or proceeding in the Delaware Court, and (d) waive, and agree not to plead or to make, any claim that any such action, claim, or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

 

Section 25.             Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed to be an original but all of which together constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

 

 

Section 26.             Headings. The headings of this Agreement are inserted for convenience only and do not constitute part of this Agreement or affect the construction thereof.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.

 

COMPANY			INDEMNITEE
By:
Name:			Name:
Title:			Address:

  

 

Exhibit 10.14

 

CERTAIN IDENTIFIED INFORMATION, MARKED BY [**], HAS BEEN EXCLUDED FROM THIS AGREEMENT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) IS THE TYPE OF INFORMATION THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

 

ASSISTANCE AGREEMENT
1. Award No.   DE-NE0009040	2. Modification No.	3. Effective Date   02/02/2021	4. CFDA No.   81.121

5. Awarded To   X Energy, LLC   Attn: HARLAN BOWERS 801   THOMPSON AVE   ROCKVILLE MD 208521627

6. Sponsoring Office   Office of Nuclear Energy   NE-1   U.S. Department of Energy   1000 Independence Avenue, S.W.   Washington DC 20585

7. Period of Performance   [**] through   [**]

8. Type of Agreement   ¨ Grant   x Cooperative Agreement   ¨ Other

9. Authority   See Text Below

10. Purchase Request or Funding Document No.   [**]

11. Remittance Address   X Energy, LLC   Attn: X ENERGY, LLC   801 Thompson Avenue   Rockville MD 20852

12. Total Amount   Govt. Share    :   [**]   Cost Share     :   [**]   Total              :   [**]

13. Funds Obligated   This action              :   [**]   Total                           :   [**]

14. Principal Investigator

15. Program Manager   CARL D. FRIESEN   Phone:     [**]

16. Administrator   U.S. Department of Energy   Idaho Operations Office   1955 Fremont Avenue   Idaho Falls ID 83415

17. Submit Payment Requests To

18. Paying Office   OR for Idaho   U.S. Department of Energy   Oak Ridge Financial Service Center   P.O. Box 6017   Oak Ridge TN 37831

19. Submit Reports To   See Attachment B3

20. Accounting and Appropriation Data   X-Energy Demonstration 2 Project

21. Research Title and/or Description of Project   X-energy and Energy Northwest Deploy First Commercial-Scale Advanced Reactor by [**]

For the Recipient	For the United States of America
22. Signature of Person Authorized to Sign	25. Signature of Grants/Agreements Officer   Signature on File

23. Name and Title

24. Date Signed

26. Name of Officer   Jeffrey C. Fogg

27. Date Signed

 

 

CONTINUATION SHEET	REFERENCE NO. OF DOCUMENT BEING CONTINUED DE-NE0009040	PAGE	OF
		2	4
NAME OF OFFEROR OR CONTRACTOR X Energy, LLC

ITEM NO. (A)	SUPPLIES/SERVICES (B)	QUANTITY (C)	UNIT (D)	UNIT PRICE (E)	AMOUNT (F)
	DUNS Number: 078846872 Box 9: Authority The activities to be supported under this award are authorized under § 951 (a) of the Energy Policy Act of 2005, as codified at 42 U.S.C. § 16271(a). Congress appropriated $230 M for NE to develop the Advanced Reactor Demonstration Program and an additional $20 M for Advanced Reactor Technologies in the Further Consolidation Appropriations Act, 2020 (H.R. 1865). Energy Policy Act of 1992, 42 U.S.C. 13525, also applies to this action. Energy Policy Act of 1992 (EPAct 92) is (Pub. L. 102-486 (Oct. 24, 1992) 106 STAT 2951)   Further Consolidated Appropriations Act of 2020, Pub. L. 116-94 (Dec. 2019), Division C, Nuclear Energy.   Section 4 of the Act incorporates the Explanatory Statement, which is published in the Congressional Record. Citation: 165 Cong. Rec. H11246 (daily ed. Dec. 17, 2019) (Explanatory Statement regarding H.R. 1865, Further Consolidated Appropriations Act 2020).   Award as a result of Funding Opportunity Announcement (FOA) DE-FOA-0002271. This cooperative agreement is made as a result of the applicant's submission selected under FOA   As a part of its mission, the United States (U.S.) Department of Energy (DOE), Office of Nuclear Energy (NE) has a long and successful history of working with the domestic nuclear industry, national laboratories, and academia to support the development of advanced reactor designs and capabilities over a continuum of technology maturity levels. DOE currently supports research and development (R&D) activities for a variety of advanced reactor technologies that are expected to improve on the safety, security, economics, and/or environmental impacts of current nuclear power plant designs. DOE undertakes these activities in support of the Administration’s objectives to maintain the Nation’s technological leadership position in the global nuclear industry and ensure national energy security. DOE recognizes that work remains to ensure continued U.S. leadership in the research, design, and development of advanced Continued ...

 

 

CONTINUATION SHEET	REFERENCE NO. OF DOCUMENT BEING CONTINUED DE-NE0009040	PAGE	OF
		3	4
NAME OF OFFEROR OR CONTRACTOR X Energy, LLC

ITEM NO. (A)	SUPPLIES/SERVICES (B)	QUANTITY (C)	UNIT (D)	UNIT PRICE (E)	AMOUNT (F)
	reactors and to ensure the successful deployment of these reactors in the U.S. and international marketplaces. As part of the FY2020 Further Consolidation Appropriations Act, (H.R. 1865), Congress has provided funding for NE to address advanced reactor development at various stages of the technology maturity continuum.   This program is intended to facilitate the development of U.S. private industry advanced nuclear reactor demonstrations. It will provide funding for several advanced reactors that are reliable, cost effective, licensable, and commercially viable. These designs are expected to enable a market environment in which commercial reactor services are available that are safe and affordable to both construct and operate when compared to competing, alternative sources of energy in the near- and mid-term. These designs are expected to provide significant improvements in safety, security, economics, and environmental impacts over current nuclear power plant designs.   Additionally, the Project Narrative, submitted with the Recipient's application ARDP-20-23767, is incorporated herein by reference as part of the Statement of Project Objectives.   Special Award Requirements   1.  No Cost Time Extensions. Unilateral no cost time extensions by the awardee will NOT be permitted under this award. The awardee must request any extension from DOE at least 3 months prior to the award’s period of performance end date, unless otherwise agreed to by DOE. Any no cost time extension must receive prior written approval from the DOE Contracting Officer.   2.  Direct Cost Funds Transfers. The awardee is restricted from transferring funds between direct cost categories; the cumulative amount of such transfers must not exceed 10% of the total budget as last approved by DOE. For funds transfers greater than 10% the recipient is required to obtain DOE prior approval.   3.  Per recommendation from the Environmental Review Officer, X Energy and the Nuclear Regulatory Council must complete an environmental Continued ...

 

 

CONTINUATION SHEET	REFERENCE NO. OF DOCUMENT BEING CONTINUED DE-NE0009040	PAGE	OF
		4	4
NAME OF OFFEROR OR CONTRACTOR X Energy, LLC

ITEM NO. (A)	SUPPLIES/SERVICES (B)	QUANTITY (C)	UNIT (D)	UNIT PRICE (E)	AMOUNT (F)
	impact statement (EIS) or environmental assessment (EA) for construction and operation of the facility during the appropriate budget periods before construction begins.   Directly Incorporated Attachments:   A. Special Terms and Conditions   B1. Intellectual Property Provisions   B2. Statement of Substantial Involvement   B3. Federal Assistance Reporting Checklist   B4. Budget Pages   B5. Project Milestones   Point Of Contact Sheet   Advanced Agreement on Pre-award Costs   Notice: This award is incrementally funded. The amount listed in Block 12 (Total Amount) represents the total estimated project amount, including FFRDC funding. FFRDC funding will be sent directly to the appropriate FFRDC through its prime contract with DOE. Block 13 (Funds Obligated) lists the total estimated funding to the awardee. These amounts are reflected in the attached budget sheet.   **Due to a system issue, the PI does not show in Block 14. The PI for this award is Darren Gale.** ASAP: NO: STD IMMEDIATE Extent Competed: COMPETED Davis-Bacon Act: YES PI: Darren Gale Delivery: [**] Delivery Location Code: [**] Idaho Operations U.S. Department of Energy Idaho Operations 1955 Fremont Avenue Idaho Falls ID 83415 US   Fund: 05350 Appr Year: 2020 Allottee: 02 Report Entity: 500201 Object Class: 25233 Program: 2721049 Project: 0000000 WFO: 0000000 Local Use: 0000000

 

 

 

 

 

DE-NE0009040

X Energy, LLC

 

AWARD TERMS AND CONDITIONS

X-Energy, LLC DE-NE0009040

Demonstration

 

TERMS AND CONDITIONS

FOR THE

DEMOS COOPERATIVE AGREEMENT

 

Contents

 

Contents		1
(1)	ADMINISTRATIVE REQUIREMENTS (DECEMBER 2014)	5
(2)	NOTICE REGARDING ELIGIBLE/INELIGIBLE ACTIVITIES	5
(3)	LEGAL AUTHORITY AND EFFECT (JUNE 2015)	5
(4)	RESOLUTION OF CONFLICTING CONDITIONS	5
(5)	AWARD AGREEMENT TERMS AND CONDITIONS (DECEMBER 2014)	5
(6)	AWARD PROJECT PERIOD AND BUDGET PERIODS	6
(7)	CONFERENCE SPENDING (FEBRUARY 2015)	6
(8)	PAYMENT PROCEDURES - REIMBURSEMENT THROUGH THE AUTOMATED CLEARING HOUSE (ACH) VENDOR INQUIRY PAYMENT ELECTRONIC REPORTING SYSTEM (VIPERS)	6
(9)	INCREMENTAL FUNDING AND MAXIMUM OBLIGATION - DIFFERENT BUDGET PERIOD AND PROJECT PERIOD	7
(10)	COST SHARING FFRDC'S PARTICIPATE	7
(11)	DIRECT PAYMENT BY DOE OF FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTER (FFRDC) CONTRACTOR COST	8
(12)	REBUDGETING AND RECOVERY OF INDIRECT COSTS - REIMBURSABLE INDIRECT COSTS AND FRINGE BENEFITS	8
(13)	PRE-AWARD COSTS (DECEMBER 2014)	8
(14)	USE OF PROGRAM INCOME - ADDITION	8
(15)	STATEMENT OF FEDERAL STEWARDSHIP	8
(16)	STATEMENT OF SUBSTANTIAL INVOLVEMENT PROVIDED AS ATTACHMENT	8
(17)	SITE VISITS	9
(18)	REPORTING REQUIREMENTS (APRIL 2018)	9
(19)	PUBLICATIONS	9
(20)	FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS	10

 

 

DE-NE0009040

X Energy, LLC

 

(21)	INTELLECTUAL PROPERTY PROVISIONS	10
(22)	CONTINUATION APPLICATION AND FUNDING - AWARDS UNDER 2 CFR § 200 AS AMENDED BY 2 CFR § 910	11
(23)	NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS	12
(24)	ENVIRONMENTAL, SAFETY AND HEALTH (ES&H) PERFORMANCE OF WORK AT DOE FACILITIES	12
(25)	INSURANCE COVERAGE (DECEMBER 2014)(REVISED)	12
(26)	REAL PROPERTY (DECEMBER 2014)	13
(27)	EQUIPMENT (DECEMBER 2014)	13
(28)	USE OF REAL PROPERTY AND EQUIPMENT ACQUIRED UNDER THE AWARD	14
(29)	SUPPLIES (DECEMBER 2014)	15
(30)	INTANGIBLE PROPERTY (DECEMBER 2014)	15
(31)	PROPERTY TRUST RELATIONSHIP (DECEMBER 2014)	15
(32)	INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP	16
(33)	NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS	16
(34)	DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS	18
(35)	HISTORIC PRESERVATION	18
(36)	REPORTING SUBAWARDS AND EXECUTIVE COMPENSATION	18
(37)	SUBAWARD AND EXECUTIVE REPORTING	21
(38)	SYSTEM FOR AWARD MANAGEMENT AND UNIVERSAL IDENTIFIER REQUIREMENTS	21
(39)	FINAL INCURRED COST AUDIT (DECEMBER 2014)	22
(40)	INDEMNITY	22
(41)	FINANCIAL COMMITMENT/FUNDING PLAN	23
(42)	LOBBYING RESTRICTIONS (MARCH 2012)	24
(43)	CORPORATE FELONY CONVICTION AND FEDERAL TAX LIABILITY ASSURANCES (MARCH 2014)	24
(44)	NONDISCLOSURE AND CONFIDENTIALITY AGREEMENTS ASSURANCES (JUNE 2015)	24
(45)	DATA MANAGEMENT PLAN (SEPT 2015)	25
(46)	REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND PERFORMANCE (DECEMBER 2015)(Revision)	28
(47)	PERSONNEL (DECEMBER 2014)	29
(48)	PROHIBITION ON PERSONALLY IDENTIFIABLE INFORMATION (PII)	29
(49)	CONFIDENTIAL BUSINESS INFORMATION	30
(50)	CHANGE OF CONTROL	30
(51)	AWARD PERIOD DURATION AND EXTENSION	31

 

 

DE-NE0009040

X Energy, LLC

 

(52)	ONE TIME EXTENSION	31
(53)	SPECIAL DISPOSITION OF PROPERTY AT THE END OF THE AWARD	31
(54)	COOPERATIVE AGREEMENT TERMINATION OR RECIPIENT SUSPENSION OF PROJECT WORK	32
(55)	COST SHARING ON INVOICES SUBMITTED FOR PAYMENT	32
(56)	TEST AND EVALUATION	32
(57)	LIABILITY DURING OPERATION OF THE ADVANCED DEMONSTRATION REACTOR	33
(58)	MILESTONES AND PAYMENTS	33
(59)	POST AWARD CONFERENCE	33
(60)	PROJECT MANAGEMENT PLAN	33
(61)	COORDINATION AND MANAGEMENT PLAN	34
(62)	WAIVER REQUESTS: PERFORMANCE OF WORK IN THE UNITED STATES	34
(63)	DOE APPROVAL FOR SUBAWARDS AND SUBCONTRACTS	34
(64)	TECHNICAL DIRECTION	35
(65)	TECHNICAL PROJECT OFFICER/PROJECT MANAGER AUTHORITY	36
(66)	AWARD TERMINATION	37
(67)	ADMINISTRATION BY NON-FEDERAL PERSONNEL	37
(68)	RECIPIENT INSPECTION REQUIREMENTS	37
(69)	REAL ESTATE (LAND) TRANSACTION APPROVAL	38
(70)	PREPARATION OF COST ESTIMATE FOR CONSTRUCTION OF THE ADVANCED DEMONSTRATION REACTOR	38
(71)	RESERVED	38
(72)	RESERVED	38
(73)	RESERVED	38
(74)	RESERVED	38
(75)	ORGANIZATION AND DIRECTION OF THE CONSTRUCTION WORK FOR THE ADVANCED DEMONSTRATION REACTOR	38
(76)	SUBAWARDS	39
(77)	GOVERNMENT ACCESS TO CONSTRUCTION PROJECT INFORMATION	40
(78)	RESERVED	40
(79)	RESERVED	40
(80)	WORK OVERSIGHT IN ENGINEERING, PROCUREMENT, CONSTRUCTION CONTRACT AWARDS	40
(81)	RESERVED	40
(82)	ARCHITECTURAL BARRIERS ACT OF 1968 (42 U.S.C. § 4151 ET SEQ.) - CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR	40

 

 

DE-NE0009040

X Energy, LLC

 

(83)	EQUAL EMPLOYMENT OPPORTUNITY UNDER E.O. 11246 – CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR	40
(84)	PERFORMANCE AND PAYMENT BONDS- CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR	41
(86)	RESERVED	42
(87)	RESERVED	42
(88)	RESERVED	42
(89)	RESERVED	42
(90)	CONSTRUCTION PERFORMANCE REPORTS	42
(91)	REPORTING ON REAL PROPERTY	42
(92)	MATERIAL AND WORKMANSHIP FOR THE CONSTRUCTION OF THE ADVANCED DEMONSTRATION REACTOR	42
(93)	PERMITS AND RESPONSIBILITIES - CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR	42
(94)	EXCUSABLE DELAYS - CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR	43
(96)	BUDGET TRANSFERS BETWEEN CONSTRUCTION AND NON-CONSTRUCTION WORK	43
(97)	DIRECT COST FUNDS TRANSFERS	43
(98)	RESTRICTION ON SMR FUNDING	44
(99)	CONTINGENCY FOR CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR	44
(100)	RESERVED	44
(101)	DOE RIGHT TO REVIEW RECIPIENT SYSTEMS	44

 

 

DE-NE0009040

X Energy, LLC

 

TERMS AND CONDITIONS FOR THE ADVANCED REACTOR
DEMONSTATION COOPERATIVE AGREEMENT

  

(1) ADMINISTRATIVE REQUIREMENTS (DECEMBER 2014)

 

The administrative requirements for DOE grants and cooperative agreements are contained in 2 CFR § 200 as amended by 2 CFR Part 910 [DOE Financial Assistance Regulation] (See: http://www.eCFR.gov). All references to 2 CFR 200, 2 CFR 910, FAR and DEAR clauses and articles incorporated by reference are, unless otherwise specified, to the version applicable as of the effective date of this Agreement.

 

(2) NOTICE REGARDING ELIGIBLE/INELIGIBLE ACTIVITIES

 

Eligible activities under this program include those which describe and promote the understanding of scientific and technical aspects of specific energy technologies, but not those which encourage or support political activities, such as the collection and dissemination of information related to potential, planned, or pending legislation.

 

(3) LEGAL AUTHORITY AND EFFECT (JUNE 2015)

 

A DOE financial assistance award is valid only if it is in writing and is signed, either in writing or electronically, by a DOE Contracting Officer. Recipients are free to accept or reject the award. A request to draw down DOE funds constitutes the Recipient's acceptance of the terms and conditions of this Award.

 

(4) RESOLUTION OF CONFLICTING CONDITIONS

 

Any apparent inconsistency between Federal statutes and regulations and the terms and conditions contained in this award must be referred to the DOE Award Administrator for guidance.

 

(5) AWARD AGREEMENT TERMS AND CONDITIONS (DECEMBER 2014)

 

This award/agreement consists of the Assistance Agreement cover page, plus the following:

 

Attachments:

 

Special Terms and Conditions

Intellectual Property Provisions

Federal Assistance Reporting Checklist

Statement of Substantial Involvement

Pre-award Agreement

Budget Pages

Project Milestones

Point of Contact List

 

DOE Assistance Regulations, 2 CFR § 200 as amended by 2 CFR § 910 at

http://www.eCFR.gov. Application/proposal as approved by DOE, in effect on the

date of award or as amended by the parties thereafter

National Policy Assurances to Be Incorporated as Award Terms in effect on date of award at:

http://www.nsf.gov/awards/managing/rtc.jsp.

 

 

DE-NE0009040

X Energy, LLC

 

(6) AWARD PROJECT PERIOD AND BUDGET PERIODS

 

The Project Period for this award is [**] through [**], consisting of the following Budget Periods:

 

·

Period 1: [**] to [**]

·

Period 2: [**] to [**]

·

Period 3: [**] to [**]

·

Period 4: [**] to [**]

·

Period 5: [**] to [**]

·

Period 6: [**] to [**]

·

Period 7: [**] to [**]

 

(7) CONFERENCE SPENDING (FEBRUARY 2015)

 

The recipient shall not expend any funds on a conference not directly and programmatically related to the purpose for which the grant or cooperative agreement was awarded that would defray the cost to the United States Government of a conference held by any Executive branch department, agency, board, commission, or office for which the cost to the United States Government would otherwise exceed $20,000, thereby circumventing the required notification by the head of any such Executive Branch department, agency, board, commission, or office to the Inspector General (or senior ethics official for any entity without an Inspector General), of the date, location, and number of employees attending such conference.

 

(8) PAYMENT PROCEDURES - REIMBURSEMENT THROUGH THE AUTOMATED CLEARING HOUSE (ACH) VENDOR INQUIRY PAYMENT ELECTRONIC REPORTING SYSTEM (VIPERS)

 

Method of Payment. Payment will be made by reimbursement through ACH.

 

Requesting Reimbursement. Requests for reimbursements must be made electronically through Department of Energy's Oak Ridge Financial Service Center (ORFSC) VIPERS. To access and use VIPERS, the Recipient must enroll at https://vipers.doe.gov. Detailed instructions on how to enroll are provided on the website.

 

For non-construction awards, the Recipient must submit a Standard Form (SF) 270, "Request for Advance or Reimbursement" at https://vipers.doe.gov and attach a file containing appropriate supporting documentation. The file attachment must show the total federal share claimed on the SF 270, the non-federal share claimed for the billing period, if cost sharing is required, and cumulative expenditures to date (both Federal and non- Federal) for each of the following categories: salaries/wages and fringe benefits; equipment; travel; participant/training support costs, if any; other direct costs, including subawards/contracts; and indirect costs. For construction awards, the Recipient must submit a SF 271, "Outlay Report and Request for Reimbursement for Construction Programs," through VIPERS.

 

Timing of submittals. Submittal of the SF 270 or SF 271 should coincide with the Recipient’s normal billing pattern, but not more frequently than every two weeks. Requests for reimbursement must be limited to the amount of disbursements made during the billing period for the federal share of direct project costs and the proportionate share of any allowable indirect costs incurred during that billing period.

 

 

DE-NE0009040

X Energy, LLC

 

Adjusting payment requests for available cash. The Recipient must disburse any funds that are available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting additional cash payments from DOE.

 

Payments. The DOE approving official will approve the invoice as soon as practicable but not later than 30 days after the Recipient’s request is received, unless the billing is improper. Upon receipt of an invoice payment authorization from the DOE approving official, the ORFSC will disburse payment to the Recipient. The Recipient may check the status of its payments at the VIPER web site. All payments are made by electronic funds transfer to the bank account identified on the ACH Vendor/Miscellaneous Payment Enrollment Form (SF 3881) that the Recipient filed.

 

(9) INCREMENTAL FUNDING AND MAXIMUM OBLIGATION - DIFFERENT BUDGET PERIOD AND PROJECT PERIOD

 

If at any time during the award a budget period is funded on an incremental basis, the maximum obligation of the DOE is limited to the amount shown on the Award Agreement. The Recipient is not obligated to continue performance of the project beyond the total amount obligated and the Recipient’s pro rata share of the project costs, if cost sharing is required.

 

Subject to the availability of additional funds appropriated by Congress for the purpose of this program and the availability of future-year budget authority, DOE anticipates obligating the total estimated amount for the current budget period.

 

(10) COST SHARING FFRDC'S PARTICIPATE

 

a. Total Estimated Project Cost is the sum of the Government share, including Federally Funded Research and Development Center (FFRDC) contractor costs, and Recipient share of the estimated project costs. The DOE/NNSA FFRDC contractor cost is not included in the total approved budget for this award, because DOE/NNSA will pay the DOE/NNSA FFRDC contractor portion of the effort under an existing DOE/NNSA contract. Recipient is not responsible for reporting on that portion of the total estimated cost that is paid directly to the DOE/NNSA FFRDC contractor.

 

The Recipient's cost share must come from non-Federal sources unless otherwise allowed by law. By accepting federal funds under this award, the Recipient agrees that it is liable for the Recipient’s percentage share of allowable project costs, on a budget period basis, even if the project is terminated early or is not funded to its completion. This cost share requirement is reflected in the budget pages in Attachment B5.

 

b. If the Recipient discovers that it may be unable to provide cost sharing of at least the amount identified in paragraph a. of this Section (10), the Recipient should immediately provide written notification to the DOE Award Administrator indicating whether the Recipient will continue or phase out the project. If the Recipients plan to continue the project, the notification must describe how replacement cost sharing will be secured.

 

c. The Recipient must maintain records of all project costs that it claims as cost sharing, including in-kind costs, as well as records of costs to be paid by DOE/NNSA. Such records are subject to audit.

 

d. Failure to provide the cost sharing required by this Section (10) may result in the subsequent recovery by DOE/NNSA of some or all the funds provided under the award.

 

 

DE-NE0009040

X Energy, LLC

 

(11) DIRECT PAYMENT BY DOE OF FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTER (FFRDC) CONTRACTOR COST

 

For the purposes of this term, Total Estimated Cost of Project includes DOE FFRDC contractor costs. The DOE FFRDC contractor cost is not included in the total approved budget for this award, because DOE will pay the DOE FFRDC contractor portion of the effort under an existing DOE contract. Recipient is not responsible for reporting on that portion of the total estimated cost that is paid directly to the DOE FFRDC contractor.

 

(12) REBUDGETING AND RECOVERY OF INDIRECT COSTS - REIMBURSABLE INDIRECT COSTS AND FRINGE BENEFITS

 

If actual allowable indirect costs are less than those budgeted and funded under the award, the Recipient may use the difference to pay additional allowable direct costs during the project period. If at the completion of the award the Government's share of total allowable costs (i.e., direct and indirect), is less than the total costs reimbursed, the Recipient must refund the difference.

 

Recipients are expected to manage their indirect costs. DOE will not amend an award solely to provide additional funds for changes in indirect cost rates. DOE recognizes that the inability to obtain full reimbursement for indirect costs means the recipient must absorb the underrecovery. Such underrecovery may be allocated as part of the organization's required cost sharing.

 

(13) PRE-AWARD COSTS (DECEMBER 2014)

 

The Recipient is entitled to reimbursement for costs incurred on or after 11/02/2020 as authorized by the pre- award costs letter dated 10/30/2020, if such costs are allowable in accordance with the applicable Federal cost principles referenced in 2 CFR § 200 as amended by 2 CFR § 910.

 

(14) USE OF PROGRAM INCOME - ADDITION

 

If the Recipient earns program income during the project period as a result of this award, the Recipient may add the program income to the funds committed to the award and use it to further eligible project objectives.

 

(15) STATEMENT OF FEDERAL STEWARDSHIP

 

DOE will exercise normal Federal stewardship in overseeing the project activities performed under this award. Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to correct deficiencies that develop during the project, consistent with U.S. Nuclear Regulatory Commission (NRC) regulatory, licensing, and permitting requirements for commercial nuclear reactors, insofar as the reactor will be licensed by the NRC ;assuring compliance with terms and conditions; and reviewing technical performance after project completion to ensure that the award objectives have been accomplished.

 

(16) STATEMENT OF SUBSTANTIAL INVOLVEMENT PROVIDED AS ATTACHMENT

 

A Statement of Substantial Involvement applicable to this cooperative agreement is provided as Attachment C to this award.

 

 

DE-NE0009040

X Energy, LLC

 

(17) SITE VISITS

 

DOE's authorized representatives have the right to make site visits at reasonable times to review project accomplishments and management control systems and to provide technical assistance, if required. The Recipient must provide, and must require subrecipients to provide, reasonable access to facilities, office space, resources, and assistance for the safety and convenience of the government representatives in the performance of their duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work.

 

(18) REPORTING REQUIREMENTS (APRIL 2018)

 

Requirements. The reporting requirements for this award are identified on the Federal Assistance Reporting Checklist, DOE F 4600.2, attached to this award. Failure to comply with these reporting requirements is considered a material noncompliance with the terms of the award. Noncompliance may result in withholding of future payments, suspension, or termination of the current award, and withholding of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a debarment action to preclude future awards by Federal agencies.

 

Dissemination of scientific/technical reporting products. Reporting project results in scientific and technical information (STI) publications/products to the DOE Office of Scientific and Technical Information (OSTI) ensures dissemination of research results to the public as well as preservation of the results. The DOE form F 4600.2, B. Scientific/Technical Reporting, has instructions for the DOE Energy Link (E-Link) system managed by OSTI. Scientific/technical reports and other STI products submitted under this award will be disseminated publicly on the Web via OSTI.GOV (https://www.osti.gov), unless the STI contains patentable material, protected data, or SBIR/STTR data, which must be indicated per instructions in DOE4600.2.

 

Restrictions. STI products submitted to the DOE via E-link must not contain any Protected Personally Identifiable Information (PII), classified information, information subject to export control classification, or other information not subject to release.

 

(19) PUBLICATIONS

 

The Recipient is encouraged to publish or otherwise make publicly available the results of the work conducted under the award. An acknowledgment of Federal support and a disclaimer must appear in the publication of any material, whether copyrighted or not, based on or developed under this project, as follows:

 

Acknowledgment: "This material is based upon work supported by the Department of Energy under Award Number(s) DE-NE0009040."

 

Disclaimer: "This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof."

 

 

DE-NE0009040

X Energy, LLC

 

(20) FEDERAL, STATE, AND MUNICIPAL REQUIREMENTS

 

The Recipient must obtain any required permits and comply with applicable federal, state, and municipal laws, codes, and regulations for work performed under this award.

 

(21) INTELLECTUAL PROPERTY PROVISIONS

 

Special Intellectual Property Provisions will apply to Agreements awarded under this FOA. These include special data protection provisions and the issuance of a class patent waiver to enhance commercialization of technology developed under this program. Additionally, specific intellectual property provisions can be found in Attachment B and will be amended as directed under any class patent waiver.

 

Special Protected Data Statutes. This program is covered by a special protected data statute. The provisions of the statute provide for the protection from public disclosure, for a period of up to five (5) years, technical data or commercial or financial data first produced in the performance of the award which if it had been obtained from and first produced by a non-federal party, would be a trade secret or commercial or financial information that is privileged or confidential under the meaning of 5 U.S.C. 552(b)(4), and which data is marked as being protected data by a party to the award. Generally, the provision entitled, Rights in Data − Programs Covered Under Special Protected Data Statutes, (2 CFR 910 Appendix A to Subpart D —Patent and Data Provisions), would apply, but may be modified to accommodate NE program requirements. Otherwise, the government has unlimited rights in technical data created under the DOE agreement. Delivery or third- party licensing of proprietary software or data developed solely at private expense will not normally be required except as specifically negotiated in an agreement or patent waiver to satisfy DOE’s needs or to ensure the commercialization of technology developed under the DOE agreement.

 

Class Patent Waiver: DOE is expecting to issue a class patent waiver for agreements awarded under this FOA, which will cover most large business recipients and lower-tier subrecipients under this FOA. The patent waiver will provide those recipients, not subject to the Bayh-Dole Act, the option to retain title to their own inventions, subject to the same government retained rights identified in the Act above. To qualify for the class waiver, a recipient must maintain the required cost-share under the program and agree to substantially manufacture technology created under this FOA in the U.S., or provide other economic benefits to the U.S. Specifically, the recipient must agree to the following U.S. Competitiveness clause:

 

The Contractor agrees that any products embodying any waived invention or produced through the use of any waived invention will be manufactured substantially in the United States unless the Contractor can show to the satisfaction of the DOE that it is not commercially feasible to do so. In the event the DOE agrees to foreign manufacture, there will be a requirement that the Government's support of the technology be recognized in an appropriate, legally binding manner. The Contractor agrees that it will not license, assign or otherwise transfer any waived invention to any entity unless that entity agrees to these same requirements. Should the Contractor or other such entity receiving rights in the invention(s): (1) undergo a change in ownership amounting to a controlling interest, or (2) sell, assign, or otherwise transfer title or exclusive rights in the invention (s), then the waiver, assignment, license, or other transfer of rights in the waived invention(s) is/are suspended until approved in writing by the DOE. Approval of any modification of this provision, shall require the concurrence of the Assistant Secretary for Nuclear Energy, the Acting Assistant Secretary, or the cognizant Principal Deputy Assistant Secretary.

 

If the recipient is unable to maintain the required cost-share or is unable to manufacture substantially in the U.S., the waiver may be terminated by DOE.

 

 

DE-NE0009040

X Energy, LLC

 

If DOE does not issue a class waiver or if applicants do not meet the criteria of the class waiver, applicants may request a waiver of all or any part of the rights of the United States in inventions conceived or first actually reduced to practice in performance of an agreement as a result of this FOA, in advance of or within 30 days after the effective date of the award. Even if such advance waiver is not requested or the request is denied, the recipient will have a continuing right under the award to request a waiver of the rights of the United States in identified inventions, i.e., individual inventions conceived or first actually reduced to practice in performance of the award. Any patent waiver that may be granted is subject to certain terms and conditions in 10 CFR 784.

 

Small Businesses and Nonprofits: Domestic small businesses and domestic nonprofit organizations will receive the patent rights clause at 37 CFR 401.14, i.e., the implementation of the Bayh-Dole Act. This clause permits domestic small business and domestic nonprofit organizations to retain title to subject inventions. Therefore, small businesses and nonprofit organizations do not need to request a waiver.

 

(22) CONTINUATION APPLICATION AND FUNDING - AWARDS UNDER 2 CFR § 200 AS AMENDED BY 2 CFR § 910

 

Continuation Application. A continuation application is a non-competitive application for an additional budget period within a previously approved project period. At least 90 days before the end of each budget period, the Recipient must submit its continuation application to the DOE Program Manager whose name is in block 15 of the Award Agreement and to the Agreements Officer/Administrator whose name is in block 25 and address is listed in block 16 of the Award Agreement

 

The Recipient’s continuation application must include the following information:

 

A report on the Recipient’s progress towards meeting the objectives of the project, including any significant findings, conclusions, or developments, and an estimate of any unobligated balances remaining at the end of the budget period. If the remaining unobligated balance is estimated to exceed 20 percent of the funds available for the budget period, explain why the excess funds have not been obligated and how they will be used in the next budget period.

 

A detailed budget and supporting justification for the upcoming budget period if additional funds are requested, a reduction of funds is anticipated, or a budget for the upcoming budget period was not approved at the time of award, or other annual bilateral budgetary pricing adjustments by the parties, if necessary, as the project progresses.

 

A description of the Recipient’s plans for the conduct of the project during the upcoming budget period in a Milestone format as described in Attachment B5 Project Milestones, and if there are changes from the DOE approved application, including changes to the total project cost, if necessary.

 

Continuation Funding. Continuation funding is contingent on (1) availability of funds appropriated by Congress for the purpose of this program; (2) the availability of future-year budget authority; (3) substantial progress towards meeting the objectives of the Recipient’s approved application; (4) submittal of required reports; and (5) compliance with the terms and conditions of the award.

 

 

DE-NE0009040

X Energy, LLC

 

(23) NOTICE REGARDING THE PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS -- SENSE OF CONGRESS

 

It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this award should be American-made.

 

(24) ENVIRONMENTAL, SAFETY AND HEALTH (ES&H) PERFORMANCE OF WORK AT DOE FACILITIES

 

With respect to the performance of any portion of the work under this award which is performed at a DOE-owned or controlled site, the recipient agrees to comply with all State and Federal ES&H regulations and with all other ES&H requirements of the operator of such site.

 

Prior to the performance on any work at a DOE-Owned or controlled site, the recipient shall contact the site facility manager for information on DOE and site-specific ES&H requirements.

 

The recipient shall apply this term to its sub-recipients and contractors.

 

(25) INSURANCE COVERAGE (DECEMBER 2014)(REVISED)

 

See 2 CFR 200.310 for insurance requirements for real property and equipment acquired or improved with Federal funds.

 

At a minimum, the Recipient shall provide insurance in the minimum amounts as set forth below. The required amount of insurance to be carried by the Recipient under this section may be changed upon the Government's written notice to the Recipient.

 

(a)

Worker's Compensation and Employer's Liability.

 

The Recipient is required to comply with applicable Federal and State workers' compensation and occupational disease statutes. If occupational diseases are not compensable under those statutes, they shall be covered under the employer's liability section of the insurance policy, except when project operations are so commingled with a Recipient's commercial operations that it would not be practical to require this coverage. The Recipient or shall obtain employer's liability coverage of at least $100,000.

 

(b)

General Liability.

 

The Recipient is encouraged to obtain bodily injury liability insurance coverage written on the comprehensive form of policy. Recommended levels of at least $500,000 per occurrence and property damage liability insurance coverage of at least $500,000 per occurrence are encouraged.

 

(c)

Automobile Liability.

 

The Recipient is encouraged to obtain automobile liability insurance written on the comprehensive form of policy. It is recommended that the policy provide for bodily injury and property damage liability covering the operation of all automobiles, including Government furnished vehicles, used in connection with performing the contract, at the following recommended amounts: obtain coverage of at least $200,000 per person and $500,000 per occurrence for bodily injury and $50,000 per occurrence for property damage, including any property damage to Government furnished vehicles.

 

 

DE-NE0009040

X Energy, LLC

 

(26) REAL PROPERTY (DECEMBER 2014)

 

Subject to the conditions set forth in 2 CFR § § 200.311, title to real property acquired or improved under a Federal award will vest upon acquisition in the non-Federal entity.

 

The non-Federal entity cannot encumber this property and must follow the requirements of 2 CFR § 200.311 before disposing of the property.

 

Except as otherwise provided by Federal statutes or by the Federal awarding agency, real property will be used for the originally authorized purpose as long as needed for that purpose. When real property is no longer needed for the originally authorized purpose, the non-Federal entity must obtain disposition instructions from the Federal awarding agency or pass- through entity. The instructions must provide for one of the following alternatives: (a) retain title after compensating the Federal awarding agency as described in 2 CFR § 200.311(c)(1); (b) Sell the property and compensate the federal awarding agency as specified in CFR § 200.311(c)(2); or transfer title to the Federal awarding agency or to a third Party designated/approved by the Federal awarding agency as specified in CFR § 200.311(c)(3).

 

See 2 CFR §200.311 for additional requirements pertaining to real property acquired or improved under a Federal award. Also see 2 CFR § 910.360 for amended requirements for Real Property for For-Profit recipients.

 

(27) EQUIPMENT (DECEMBER 2014)

 

Subject to the conditions provided in 2 CFR 200.313, title to equipment (property) acquired under a Federal award will vest conditionally with the non-Federal entity.

 

The non-Federal entity cannot encumber this property and must follow the requirements of 2 CFR §200.313 before disposing of the property.

 

States must use equipment acquired under a Federal award by the state in accordance with state laws and procedures.

 

Equipment must be used by the non-Federal entity in the program or project for which it was acquired as long as it is needed, whether or not the project or program continues to be supported by the Federal award. When no longer needed for the originally authorized purpose, the equipment may be used by programs supported by the Federal awarding agency in the priority order specified in 2 CFR § 200.313(c)(1)(i) and (ii).

 

Management requirements, including inventory and control systems, for equipment are provided in 2 CFR § 200.313(d).

 

When equipment acquired under a Federal award is no longer needed, the non-Federal entity must obtain disposition instructions from the Federal awarding agency or pass-through entity.

 

 

DE-NE0009040

X Energy, LLC

 

Disposition will be made as follows: (a) items of equipment with a current fair market value of $5,000 or less may be retained, sold, or otherwise disposed of with no further obligation to the Federal awarding agency; (b) Non-Federal entity may retain title or sell the equipment after compensating the Federal awarding agency as described in 2 CFR § 200.313(e)(2); or (c) transfer title to the Federal awarding agency or to an eligible third Party as specified in CFR § 200.313(e)(3).

 

See 2 CFR § 200.313 for additional requirements pertaining to equipment acquired under a Federal award. Also see 2 CFR § 200.439 Equipment and other capital expenditures.

 

See 2 CFR § 910.360 for amended requirements for Equipment for For-Profit recipients.

 

(28) USE OF REAL PROPERTY AND EQUIPMENT ACQUIRED UNDER THE AWARD

 

For real property and equipment acquired in the performance of this award, the real property and equipment can continue to be used for the originally authorized purpose as long as needed for that purpose (i.e., as part of the power generation facilities of an electric utility system or in any other manner for the purpose of demonstrating the suitability for commercial application of the advanced nuclear reactor. Accordingly, at the end of the award project period, DOE will proceed with its normal award close out procedures; however, the recipient shall maintain conditional title to the property and continue to use it for its originally authorized purpose. The Recipient cannot encumber this property, without prior written approval by Contracting Officer, and must follow the requirements set forth in 2 C.F.R. § 910.360 before disposing of the property.

 

It is anticipated that the recipient will continue to use the property for the originally authorized purpose as long as needed for that purpose, for the life of the plant/reactor (which could be of an extended duration). The Recipient is solely responsible for the operation, maintenance and any other costs and liabilities (including accidents) associated with the plant/reactor, including all end of reactor service life decommissioning costs, unless otherwise agreed to in writing by the Contracting Officer. The recipient may make additions, improvements, modifications, replacements, rearrangements, reinstallations, renovations or alterations to the property that materially increases its value or useful life (other than normal ordinary repairs and maintenance)but make advanced written notification, at least 60 days prior, to the Contracting Officer (such that the Contracting Officer can ensure the property will continue to be used for its original purpose). If the change to the property prevents its continue use for the original purpose, the Government has the right to deny the change provided that denial is issued within the 60 day period.

 

The recipient must maintain records of any changes to the property, which shall be subject to DOE or NRC review upon request.

 

Recipient will be allowed to continue to use all equipment and property acquired in connection with this award for the original purposes of the award after the award term has ended. Title to this equipment and property will be held by the recipient conditionally with the US Government maintaining a reversionary interest commensurate with the federal participation in the original project. Recipient shall provide a report at least once every five (5) years following the award term period of performance to describe the continued use and to certify that it is in accordance with current regulations, licensing and the original purpose(s) of the award. This report shall also include updated current Fair Market Value (FMV) of the aggregate equipment and property, hereafter referred to as the complex. (see next paragraph)

 

Within 90 days of initial award, recipient shall submit to the Contracting Officer (CO) a projected progressive FMV (in 2020 dollars) in 5 year increments lasting 75 years (or whatever the design time period for the operational life of the reactor is; e.g. value at construction completion, value at 5/10/15/20/25/…./75 years after construction) of the entire operational complex constructed for the award. The projected progressive FMV (in current year dollars) shall be updated and submitted to the CO within 90 days following completion of the complex construction. The projected FMV will serve as a basis for determining when the US Government will surrender all interest in the title of the complex acquired/constructed in connection with this award.

 

 

DE-NE0009040

X Energy, LLC

 

Values should be projections of expected sales price if complex were to be advertised widely and sold to an open and competitive market. Do not use depreciated or book value. When the FMV of the complex is less than $5,000, the US government will surrender/abandon claim to title for the complex acquired/constructed in connection with this award. FMV calculations should consider anticipated liabilities and costs associated with maintenance and end of life remediation.

 

Recipient will remain liable for all maintenance, remediation, and end of life disposition activities associated with the complex throughout its entire lifecycle.

 

If recipient desires to sell or transfer the complex to a different entity at any time prior to full title transfer, contact the CO for guidance.

 

During the time the property continues to be used, the recipient must report to DOE on the continued use of the property, as specified in the award’s Reporting Requirements Checklist and in accordance with 2 CFR § 200.329. Further, at the time recipient decides to no longer use the property for its originally authorized purpose, the recipient shall proceed with obtaining disposition instructions, as specified in the terms and conditions of this award.

 

In addition, should the recipient, during reactor operation, sell or have a change of control, the parties will follow 2 CFR § 910.368 and §910.370, as applicable.

 

(29) SUPPLIES (DECEMBER 2014)

 

See 2 CFR § 200.314 for requirements pertaining to supplies acquired under a Federal award. See also §

 

200.453 Materials and supplies costs, including costs of computing devices.

 

(30) INTANGIBLE PROPERTY (DECEMBER 2014)

 

Title to intangible property (as defined in 2 CFR § 200.59) acquired under a Federal award vests upon acquisition in the non-Federal entity. Intangible property includes trademarks, copyrights, patents and patent applications.

 

See 2 CFR § 200.315 for additional requirements pertaining to intangible property acquired under a Federal award. Also see 2 CFR § 910.362 for amended requirements for Intellectual Property for For-Profit recipients.

 

(31) PROPERTY TRUST RELATIONSHIP (DECEMBER 2014)

 

Real property, equipment, and intangible property, that are acquired or improved with a Federal award must be held in trust by the non-Federal entity as trustee for the beneficiaries of the project or program under which the property was acquired or improved.

 

See 2 CFR § 200.316 for additional requirements pertaining to real property, equipment, and intangible property acquired or improved under a Federal award.

 

 

DE-NE0009040

X Energy, LLC

 

(32) INSOLVENCY, BANKRUPTCY OR RECEIVERSHIP

 

The Recipient shall immediately notify the DOE of the occurrence of any of the following events: (i) filing by Recipient or its parent entity(ies) of a voluntary case seeking liquidation or reorganization under the Bankruptcy Act; (ii) consent to the institution of an involuntary case under the Bankruptcy Act against the Recipient or its parent entity(ies); (iii) the filing of any similar proceeding for or against the Recipient or its parent entity(ies), or its or their consent to, the dissolution, winding-up or readjustment of debts, appointment of a receiver, conservator, trustee, or other officer with similar powers over the Recipient or its or parent entity(ies), under any other applicable state or federal law; or (iv) insolvency of recipient(s) or its parent entity(ies) due to the inability to pay debts generally as they become due.

 

Such notification shall be in writing and shall: (i) specifically set out the details of the occurrence of an event referenced in the above paragraph; (ii) provide the facts surrounding that event; and (iii) provide the impact such event will have on the project being funded by this award.

 

Upon the occurrence of any of the four events described in the first paragraph of this Section (33), DOE reserves the right to conduct a review of its award to the Recipient to determine compliance with the required elements of the award (including such items as cost share, progress towards technical project objectives, and submission of required reports). If the DOE review determines that there are significant deficiencies or concerns with the Recipient performance under the award, DOE reserves the right to impose additional requirements, as needed, including (i) change the award’s payment method; or (ii) institute payment controls.

 

Failure of the Recipient to comply with this term may be considered a material noncompliance of this financial assistance award by the Contracting Officer.

 

(33) NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REQUIREMENTS

 

National Environmental Policy Act (42 USC 4321, et seq.). The recipient is restricted from taking any action using Federal funds, which would have an adverse effect on the environment or limit the choice of reasonable alternatives prior to DOE providing either a NEPA clearance or a final NEPA decision regarding this project.

 

Prohibited actions include:

 

·

Construction of the Demonstration Facilities and Additional Buildings within appropriate budget periods

 

·

Operation of the Demonstration Facilities and Additional Buildings within appropriate budget periods

 

This restriction does not preclude the recipient from:

 

·

Planning Demonstration Facilities and Additional Buildings prior to construction

 

·

Designing Demonstration Facilities and Additional Buildings prior to construction

 

If the recipient moves forward with activities that are not authorized for federal funding by the DOE Contracting Officer in advance of the final NEPA decision, the recipient is doing so at the risk of not receiving federal funding and such costs may not be recognized as allowable cost share.

 

Where this award includes construction activities, the recipient must submit an Environmental Evaluation Notification Form, addressing NEPA issues prior to DOE initiating the NEPA process. DOE’s decision whether and how to distribute federal funds under this award is subject to NEPA. NEPA requires Federal agencies to integrate environmental values into their decision-making processes by considering the potential environmental impacts of their proposed actions. For additional background on NEPA, please see DOE’s NEPA website, at http://nepa.energy.gov/.

 

 

DE-NE0009040

X Energy, LLC

 

While NEPA compliance is a Federal agency responsibility and the ultimate decisions remain with DOE, the recipient is required to assist in the timely and effective completion of the NEPA process in the manner most pertinent to the project. If DOE determines certain records must be prepared to complete the NEPA review process (e.g., biological evaluations or environmental assessments), the costs to prepare the necessary records may be included as part of the project costs. The recipient may be required to submit one or more environmental check lists.

 

DOE must comply with the National Environmental Policy Act (NEPA) prior to authorizing the use of Federal funds for certain activities under this award. Based on the information available, DOE may determine that an Environmental Assessment (EA) or an Environmental Impact Statement (EIS) is required. A final NEPA decision (e.g., a Finding of No Significant Impact [FONSI] for projects requiring an EA or a Record of Decision [ROD] for projects requiring an EIS) is required prior to DOE notifying the Recipient of approval to proceed with the expenditure of Federal funds for certain activities under this award. Prohibited actions include, but are not limited to: detailed design; purchase of long-lead time equipment; demolition or decontamination of existing buildings; and site preparation, clearing, ground breaking, excavation, and construction. However, DOE may provide cost-shared funding for activities necessary to perform site characterization, sampling, and monitoring to support the NEPA process; preparation of conceptual design data, analysis, and documentation (including project planning assistance); and training before a final NEPA decision is issued.

 

Questions about the permissibility of Federal cost sharing on activities prior to DOE’s issuance of a FONSI or ROD shall be directed to the Contracting Officer. At its discretion, DOE may issue an Interim Action Determination to document DOE’s decision regarding the permissibility of Federal cost-sharing on the activities that are within the scope of an on-going EA or EIS process. Approval to incur cost eligible for Federal cost sharing requires written approval from the Contracting Officer. After receiving Interim Action approval from the Contracting Officer, if the Recipient chooses to incur costs eligible for Federal cost sharing for the approved activities, the Recipient agrees to abide by the conditions, limitations, mitigation measures, monitoring requirements, and reporting responsibilities specified in the Interim Action Determination and to undertake these activities in accordance with necessary landowner approvals, required permits, and any additional approvals and mitigation requirements of other Federal, state and local governmental agencies with jurisdiction by law.

 

Prior to issuance of a final NEPA document (Final EA/EIS, FONSI, ROD, Mitigation Action Plan, etc.), DOE agrees to discuss with the Recipient any proposed conditions and requirements that may be imposed if DOE decides to proceed with its proposed action. However, DOE retains sole discretion on whether to issue a final NEPA document and what conditions to include in it if one is issued.

 

If DOE decides to proceed with its proposed action subject to conditions, limitations, mitigation requirements, or monitoring requirements specified in a final NEPA document, the Recipient agrees to:

 

1.

abide by the conditions, limitations, mitigation requirements, and monitoring requirements specified in the final NEPA document;

 

2.

negotiate changes to the project schedule, costs, and/or scope as necessary to effect the requirements or conditions in the final NEPA document;

 

3.

allow DOE’s authorized representatives to visit the site and facilities upon notice to verify project status and compliance to include conditions and requirements in the final NEPA document; and

 

4.

submit data or otherwise meet specified reporting requirements that may be in the final NEPA document.

 

 

DE-NE0009040

X Energy, LLC

 

If the Recipient finds the conditions and requirements to be unacceptable, it reserves the right to terminate the Award in accordance with 2 CFR 200.339.

 

(34) DECONTAMINATION AND/OR DECOMMISSIONING (D&D) COSTS

 

Notwithstanding any other terms of this Agreement, the Government shall not be responsible for or have any obligation to the recipient for (i) Decontamination and/or Decommissioning (D&D) of any of the recipient’s facilities, or (ii) any costs which may be incurred by the recipient in connection with the D&D of any of its facilities due to the performance of the work under this Agreement, whether said work was performed prior to or subsequent to the effective date of this Agreement.

 

(35) HISTORIC PRESERVATION

 

Prior to the expenditure of Federal funds to alter any structure or site, the Recipient is required to comply with the requirements of Section 106 of the National Historic Preservation Act (NHPA), consistent with DOE’s 2009 letter of delegation of authority regarding the NHPA. Section 106 applies to historic properties that are listed in or eligible for listing in the National Register of Historic Places. In order to fulfill the requirements of Section 106, the recipient must contact the State Historic Preservation Officer (SHPO), and, if applicable, the Tribal Historic Preservation Officer (THPO), to coordinate the Section 106 review outlined in 36 CFR § 800. SHPO contact information is available at the following link: http://www.ncshpo.org/find/index.htm. THPO contact information is available at the following link: http://www.nathpo.org/map.html.

 

Section 110(k) of the NHPA applies to DOE funded activities. Recipients shall avoid taking any action that results in an adverse effect to historic properties pending compliance with Section 106.

 

Recipients should be aware that the DOE Contracting Officer will consider the recipient in compliance with Section 106 of the NHPA only after the Recipient has submitted adequate background documentation to the SHPO/THPO for its review, and the SHPO/THPO has provided written concurrence to the Recipient that it does not object to its Section 106 finding or determination. Recipient shall provide a copy of this concurrence to the Contracting Officer.

 

(36) REPORTING SUBAWARDS AND EXECUTIVE COMPENSATION

 

a. Reporting of first-tier subawards.

 

·

Applicability. Unless the Recipient is exempt as provided in paragraph d. of this Section (37), the Recipient must report each action that obligates $25,000 or more in Federal funds that does not include Recovery funds (as defined in section 1512(a)(2) of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5) for a subaward to an entity (see definitions in paragraph e. of this Section (37).

 

·

Where and when to report.

 

·

The Recipient must report each obligating action described in paragraph a.1. of this award term to http://www.fsrs.gov.

 

·

For subaward information, report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7, 2010, the obligation must be reported by no later than December 31, 2010.)

 

 

DE-NE0009040

X Energy, LLC

 

·

What to report. The Recipient must report the information about each obligating action that the submission instructions posted at http://www.fsrs.gov specify.

 

b. Reporting Total Compensation of Recipient Executives.

 

1)

Applicability and what to report. The Recipient must report total compensation for each of the Recipient’s five most highly compensated executives for the preceding completed fiscal year, if

 

a)

the total Federal funding authorized to date under this award is $25,000 or more;

 

b)

in the preceding fiscal year, the Recipient received;

 

·

80 percent or more of the Recipient’s annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

 

·

$25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

 

c)

The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm.)

 

2)

Where and when to report. Recipient must report executive total compensation described in paragraph b.1. of this award term:

 

a)

As part of the Recipient’s registration profile at http://www.sam.gov.

 

b)

By the end of the month following the month in which this award is made, and annually thereafter.

 

c. Reporting of Total Compensation of Subrecipient Executives.

 

·

Applicability and what to report. Unless the Recipient is exempt as provided in paragraph d. of this Section (37) term, for each first-tier subrecipient under this award, Recipient(s) shall report the names and total compensation of each of the subrecipient’s five most highly compensated executives for the subrecipient’s preceding completed fiscal year, if;

 

·

in the subrecipient’s preceding fiscal year, the subrecipient received;

 

·

80 percent or more of its annual gross revenues from Federal procurement contracts (and subcontracts) and Federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

 

·

$25,000,000 or more in annual gross revenues from Federal procurement contracts (and subcontracts), and Federal financial assistance subject to the Transparency Act (and subawards); and

 

·

The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm. )

 

 

DE-NE0009040

X Energy, LLC

 

·

Where and when to report. Recipient(s) must report subrecipient executive total compensation described in paragraph c.1. of this Section (37):

 

·

To the recipient.

 

·

By the end of the month following the month during which the Recipient makes the subaward. For example, if a subaward is obligated on any date during the month of October of a given year ( i.e., between October 1 and 31), the Recipient must report any required compensation information of the subrecipient by November 30 of that year.

 

d. Exemptions

 

If, in the previous tax year, the Recipient had gross income, from all sources, under $300,000, the Recipient is exempt from the requirements to report:

 

1)

Subawards, and

 

2)

The total compensation of the five most highly compensated executives of any subrecipient.

 

a)

Definitions. For purposes of this award term:

Entity means all of the following, as defined in 2 CFR part 25:

 

·

A Governmental organization, which is a State, local government, or Indian tribe;

 

·

A foreign public entity;

 

·

A domestic or foreign nonprofit organization;

 

·

A domestic or foreign for-profit organization;

 

·

A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity.

 

Executive means officers, managing partners, or any other employees in management positions.

 

Subaward:

 

·

This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which the Recipient received this award or that the Recipient awards to an eligible subrecipient.

 

·

The term does not include the Recipient’s procurement of property and services needed to carry out the project or program (for further explanation, see Sec. .210 of the attachment to OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations).

 

·

A subaward may be provided through any legal agreement, including an agreement that the Recipient or a subrecipient considers a contract.

 

Subrecipient means an entity that:

 

·

Receives a subaward from the Recipient under this award; and

 

·

Is accountable to the Recipient for the use of the Federal funds provided by the subaward.

 

Total compensation means the cash and noncash dollar value earned by the executive during the recipient’s or subrecipient’s preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)):

 

 

DE-NE0009040

X Energy, LLC

 

·

Salary and bonus.

 

·

Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.

 

·

Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives, and are available generally to all salaried employees.

 

·

Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.

 

·

Above-market earnings on deferred compensation which is not tax-qualified.

 

·

Other compensation, if the aggregate value of all such other compensation (e.g. severance, termination payments, value of life insurance paid on behalf of the employee, prerequisites or property) for the executive exceeds $10,000.

 

(37) SUBAWARD AND EXECUTIVE REPORTING

 

Additional administrative requirements necessary for DOE grants and cooperative agreements to comply with the Federal Funding and Transparency Act of 2006 (FFATA) are contained in 2 CFR, Part 170. (See: http://www.eCFR.gov). Prime awardees must register with the new FSRS database and report the required data on their first tier subawardees. Prime awardees must report the executive compensation for their own executives as part of their registration profile in the System for Award Management (SAM).

 

(38) SYSTEM FOR AWARD MANAGEMENT AND UNIVERSAL IDENTIFIER REQUIREMENTS

 

a. Requirement for Registration in the System for Award Management(SAM)

 

Unless the Recipient is exempted from this requirement under 2 CFR 25.110, the Recipient must maintain the currency of its information in SAM until the Recipient submits the final financial report required under this award or receives the final payment, whichever is later. This requires that the Recipient review and update the information at least annually after the initial registration, and more frequently if required by changes in the Recipient’s information or another award term.

 

If the Recipient had an active registration in the CCR, the Recipient has an active registration in SAM.

 

b.

Requirement for Data Universal Numbering System (DUNS) Numbers. If the Recipient is authorized to make subawards under this award, the Recipient must notify potential subrecipients that no entity (see definition in paragraph c. of Section 39) may receive a subaward from the Recipient unless the entity has provided its DUNS number to the Recipient.

 

Note: Recipient may not make a subaward to an entity unless the entity has provided its DUNS number to the Recipient.

 

 

DE-NE0009040

X Energy, LLC

 

c. Definitions

 

For purposes of this award Section (39):

 

System for Award Management (SAM) means the Federal repository into which an entity must provide information required for the conduct of business as a recipient. Additional information about registration procedures may be found at the SAM Internet site (currently at http://www.sam.gov).

 

Data Universal Numbering System (DUNS) number means the nine-digit number established and assigned by Dun and Bradstreet, Inc. (D&B) to uniquely identify business entities. A DUNS number may be obtained from D&B by telephone (currently 866-705-5711) or the Internet (currently at http://fedgov.dnb.com/webform).

 

Entity, as it is used in this award term, means all of the following, as defined at 2 CFR § 25, subpart C:

 

·

A Governmental organization, which is a State, local government, or Indian Tribe,

 

·

A foreign public entity,

 

·

A domestic or foreign nonprofit organization,

 

·

A domestic or foreign for-profit organization; and

 

·

A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity.

 

Subaward: Means a legal instrument to provide support for the performance of any portion of the substantive project or program for which the Recipient received this award and that the Recipient awards to an eligible subrecipient.

 

The term does not include the Recipient’s procurement of property and services needed to carry out the project or program (for further explanation, see Sec. .210 of the attachment to OMB Circular A-133, Audits of States, Local Governments, and Non- Profit Organizations).

 

A subaward may be provided through any legal agreement, including an agreement that the Recipient considers a contract.

 

Subrecipient means an entity that:

 

Receives a subaward from the Recipient under this award; and

 

Is accountable to the Recipient for the use of the Federal funds provided by the subaward.

 

(39) FINAL INCURRED COST AUDIT (DECEMBER 2014)

 

In accordance with 2 CFR § 200 as amended by 2 CFR § 910, DOE reserves the right to initiate a final incurred cost audit on this award. If the audit has not been performed or completed prior to the closeout of the award, DOE retains the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.

 

(40) INDEMNITY

 

The Recipient shall indemnify the Government and its officers, agents, or employees for any and all liability, including litigation expenses and attorneys’ fees, arising from suits, actions, or claims of any character for death, bodily injury, or loss of or damage to property or to the environment, resulting from the project, except to the extent that such liability results from the direct fault or negligence of Government officers, agents or employees, or to the extent such liability may be covered by applicable allowable costs provisions, or to the extent such liability arises from a nuclear incident or precautionary evacuation as defined by the Price Anderson Act.

 

 

DE-NE0009040

X Energy, LLC

 

(41) FINANCIAL COMMITMENT/FUNDING PLAN

 

Not later than 90 days prior to the budget period start date:

 

a.  The Recipient shall provide to DOE an updated cost estimate for the subsequent budget along with evidence of firm commitments for the full private sector share of the subsequent budget cost. Such evidence may include executed loans, bond financing agreements, state or local grants, and third-party contribution agreements. For each non-governmental source of cost-sharing, the DOE may request audited financial statements for the most recent two years, which if requested will be provided directly to the DOE from such recipient.

 

b.  If firm commitments for the full private sector share of the subsequent budget period cost have not been secured, Recipient shall provide evidence of firm commitments made to date, as set forth in paragraph of this Section (42), and a detailed Funding Plan in accordance with the requirements set forth below:

 

·

The Funding Plan will demonstrate a reasonable plan to obtain the balance of funding for the private sector share of the project cost. The Funding Plan must identify all anticipated sources of the private sector cost-share such as bank loans, bond offerings, state or local grants, and equity contributions.

 

·

The Recipient shall provide a full description of any limitations, conditions or other factors that could affect the availability of funding. If third party financing will be a source of project funds, the Recipient shall discuss the timing, conditionality and terms and conditions of such financing.

 

·

If requested by the DOE, audited financial statements for the most recent two fiscal years shall be provided for each non-governmental source of funds. If a source does not have audited financial statements, that source should provide equivalent financial statements prepared by the party, in accordance with Generally Accepted Accounting Principles, and certified as to accuracy and completeness by the Chief Financial Officer of the party providing the statements.

 

·

The Recipient shall obtain and provide a commitment letter from each source, signed by an officer of the corporation or other entity that is authorized to commit the funding to the proposed project. The amount of funds to be provided, the timing of the funding, and any contingencies, should be specified. Commitment letters should identify the type of proposed cost sharing (e.g., cash, services, and/or property) to be contributed.

 

·

If in-kind contributions of property or services are proposed, the Recipient shall provide support for their valuation and explain how the valuation was determined.

 

·

If the project will be financed on a non-recourse basis, the Recipient shall provide a working financial model (in MS Excel 2003 or 2007) that provides projections of the project including an income statement, balance sheet, cash flow statement, and sources and uses of funds statement, all on an annual basis with appropriate supporting schedules. The financial projections should be developed in this financial model, commencing with the initial project development phase and extending through the period of operations needed to obtain funding. The model should be provided in electronic form including cell formulas so that review of the model assumptions and sensitivity calculations may be facilitated. The recipient shall provide a description and explanation for each of the financial, economic, and operating assumptions for the project. The assumptions should be consistent with and supported by the information provided in the project cost estimate.

 

In the event DOE determines that the information provided by Recipient is inadequate to assure the availability of full funding for the private sector share of the subsequent budget period, DOE reserves the right, at DOE’s discretion, to: (1) stop payment, (2) renegotiate the project scope and/or payment schedule, or (3) after Recipient is provided 30 days advance written notice and opportunity to cure, declare the grant terminated by mutual agreement. Should DOE declare the grant terminated, the Recipient shall be entitled to payment of DOE’s share of allowable project cost incurred prior to the date of termination plus the reasonable cost of terminating contracts. DOE’s maximum liability for project cost in the event of termination is [enter amount of max liability].

 

 

DE-NE0009040

X Energy, LLC

 

(42) LOBBYING RESTRICTIONS (MARCH 2012)

 

By accepting funds under this award, the Recipient agree that none of the funds obligated on the award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.

 

(43) CORPORATE FELONY CONVICTION AND FEDERAL TAX LIABILITY ASSURANCES (MARCH 2014)

 

By entering into this agreement, the undersigned attests that X Energy, LLC has not been convicted of a felony criminal violation under Federal law in the 24 months preceding the date of signature.

 

The undersigned further attests that X Energy, LLC does not have any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability.

 

For purposes of these assurances, the following definitions apply:

 

A Corporation includes any entity that has filed articles of incorporation in any of the 50 states, the District of Columbia, or the various territories of the United States [but not foreign corporations]. It includes both for- profit and non-profit organizations.

 

(44) NONDISCLOSURE AND CONFIDENTIALITY AGREEMENTS ASSURANCES (JUNE 2015)

 

By entering into this agreement, the undersigned attests that X Energy, LLC does not and will not require its employees or contractors to sign internal nondisclosure or confidentiality agreements or statements prohibiting or otherwise restricting its employees or contactors from lawfully reporting waste, fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency authorized to receive such information.

 

The undersigned further attests that X Energy, LLC does not and will not use any Federal funds to implement or enforce any nondisclosure and/or confidentiality policy, form, or agreement it uses unless it contains the following provisions:

 

a.  ’‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and arecontrolling.’’

 

The limitation above shall not contravene requirements applicable to Standard Form 312, Form 4414, or any other form issued by a Federal department or agency governing the nondisclosure of classified information.

 

 

DE-NE0009040

X Energy, LLC

 

Notwithstanding provision listed in paragraph (a), a nondisclosure or confidentiality policy form or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure or confidentiality forms shall also make it clear that they do not bar disclosures to Congress, or to an authorized official of an executive agency or the Department of Justice, that are essential to reporting a substantial violation of law.

 

(45) DATA MANAGEMENT PLAN (SEPT 2015)

 

a. (1) Not later than 90 days after the effective date of the award the Recipient must provide the Contracting Officer with a Data Management Plan. A Data Management Plan (“DMP”) explains how data generated in the course of the research or work performed under an assistance award will be shared and preserved or, when justified, explains why data sharing or preservation is not possible or scientifically appropriate. (2) In the event the Recipient fails to submit the DMP within 90 days after award or DOE determines that the of this Section (46), information provided by the Recipient in its DMP does not meet the requirements in section b), DOE may take one or more of the actions identified in 2 CFR 200.388, including, but not limited to, temporarily withholding payments to the Recipient pending correction of the deficiency, or wholly or partially suspending or terminating the Federal award.

 

b. DMP Requirements - In order for a DMP to be considered acceptable, the DMP must address the following:

 

·

At a minimum, the DMP must describe how data sharing and preservation will enable validation of the results from the proposed work, or how results could be validated if data are not shared or preserved.

 

·

The DMP must provide a plan for making all research data displayed in publications resulting from the proposed work digitally accessible at the time of publication. This includes data that are displayed in charts, figures, images, etc. In addition, the underlying digital research data used to generate the displayed data should be made as accessible as possible in accordance with the principles stated above. This requirement could be met by including the data as supplementary information to the published article, or through other means. The published article should indicate how these data can be accessed.

 

·

The DMP should consult and reference available information about data management resources to be used in the course of the proposed research work. In particular, a DMP that explicitly or implicitly commits data management resources at a facility beyond what is conventionally made available to approved users should be accompanied by written approval from that facility. In determining the resources available for data management at DOE User Facilities, researchers should consult the published description of data management resources and practices at that facility and reference it in the DMP. Information about other DOE facilities can be found in the additional guidance from the sponsoring program.

 

·

The DMP must protect confidentiality, personal privacy, Personally Identifiable Information, and U.S. national, homeland, and economic security; recognize proprietary interests, business confidential information, and intellectual property rights; avoid significant negative impact on innovation, and U.S. competitiveness; and otherwise be consistent with all laws (e.g., export control laws), and DOE regulations, orders, and policies.

 

 

DE-NE0009040

X Energy, LLC

 

c. Data Determination for a DMP

 

The Principal Investigator should determine which data should be the subject of the DMP and, in the DMP, propose which data should be shared and/or preserved in accordance with the DMP Requirements noted above.

 

For data that will be generated through the course of the proposed research/work, the Principal Investigator should indicate what types of data should be protected from immediate public disclosure by DOE (referred to as “protected data”) and what types of data that DOE should be able to release immediately. Similarly, for data developed outside of the proposed research work at private expense that will be used in the course of the proposed research work, the Principal Investigator should indicate whether that type of data will be subject to public release or kept confidential (referred to as “Limited Rights Data”). Any use of Limited Rights Data or labeling of data as “protected data” must be consistent with the DMP Requirements noted above.

 

d. Suggested Elements for a DMP - The following list of elements for a DMP provides suggestions regarding the data management planning process and the structure of the DMP:

 

·

Data Types and Sources: A brief, high-level description of the data to be generated or used through the course of the proposed research work and which of these are considered digital research data necessary to validate the research findings or results.

 

·

Content and Format: A statement of plans for data and metadata content and format including, where applicable, a description of documentation plans, annotation of relevant software, and the rationale for the selection of appropriate standards. Existing, accepted community standards should be used where possible. Where community standards are missing or inadequate, the DMP could propose alternate strategies for facilitating sharing, and should advise the sponsoring program of any need to develop or generalize standards.

 

·

Sharing and Preservation: A description of the plans for data sharing and preservation. This should include, when appropriate: the anticipated means for sharing and the rationale for any restrictions on who may access the data and under what conditions; a timeline for sharing and preservation that addresses both the minimum length of time the data will be available and any anticipated delay to data access after research findings are published; any special requirements for data sharing, for example, proprietary software needed to access or interpret data, applicable policies, provisions, and licenses for re-use and re-distribution, and for the production of derivatives, including guidance for how data and data products should be cited; any resources and capabilities (equipment, connections, systems, software, expertise, etc.) requested in the research proposal that are needed to meet the stated goals for sharing and preservation (this could reference the relevant section of the associated research proposal and budget request); and whether/where the data will be preserved after direct project funding ends and any plans for the transfer of responsibilities for sharing and preservation.

 

·

Protection: A statement of plans, where appropriate and necessary, to protect confidentiality, personal privacy, Personally Identifiable Information, and U.S. national, homeland, and economic security; recognize proprietary interests, business confidential information, and intellectual property rights; and avoid significant negative impact on innovation, and U.S. competitiveness.

 

·

Rationale: A discussion of the rationale or justification for the proposed data management plan including, for example, the potential impact of the data within the immediate field and in other fields, and any broader societal impact.

 

e. Additional Guidance

 

In determining which data should be shared and preserved, researchers must consider the data needed to validate research findings as described in the DMP Requirements, and are encouraged to consider the potential benefits of their data to their own fields of research, fields other than their own, and society at large.

 

 

DE-NE0009040

X Energy, LLC

 

DMPs should reflect relevant standards and community best practices and make use of community accepted repositories whenever practicable.

 

Costs associated with the project description/scope of work and resources articulated in a DMP may be included in the proposed research budget as permitted by the applicable cost principles.

 

To improve the discoverability of and attribution for datasets created and used in the course of research, DOE encourages the citation of publicly available datasets within the reference section of publications, and the identification of datasets with persistent identifiers such as Digital Object Identifiers (DOIs). In most cases, DOE can provide DOIs free of charge for data resulting from DOE-funded research through its Office of Scientific and Technical Information (OSTI) DataID Service.

 

f. Definitions

 

Data Preservation: Data preservation means providing for the usability of data beyond the lifetime of the research activity that generated them.

 

Data Sharing: Data sharing means making data available to people other than those who have generated them. Examples of data sharing range from bilateral communications with colleagues, to providing free, unrestricted access to anyone through, for example, a web-based platform.

 

Digital Research Data: The term digital data encompasses a wide variety of information stored in digital form including: experimental, observational, and simulation data; codes, software and algorithms; text; numeric information; images; video; audio; and associated metadata. It also encompasses information in a variety of different forms including raw, processed, and analyzed data, published and archived data.

 

Research Data: The recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This ‘recorded’ material excludes physical objects (e.g., laboratory samples). Research data also do not include:

 

·

Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and

 

·

Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.”

 

Validate: In the context of DMPs, validate means to support, corroborate, verify, or otherwise determine the legitimacy of the research findings. Validation of research findings could be accomplished by reproducing the original experiment or analyses; comparing and contrasting the results against those of a new experiment or analyses; or by some other means.

 

 

DE-NE0009040

X Energy, LLC

 

(46) REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY AND PERFORMANCE (DECEMBER 2015)(Revision)

 

a. General Reporting Requirement

 

If the total value of the Recipient’s currently active grants, cooperative agreements, and procurement contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this Federal award, then the Recipient during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System FAPIIS)) about civil, criminal, or administrative proceedings described in this award term and condition. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111-212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for Federal procurement contracts, will be publicly available.

 

b. Proceedings About Which The Recipient Must Report

 

Submit the information required about each proceeding that:

 

1. Is in connection with the award or performance of a grant, cooperative agreement, or procurement contract from the Federal Government;

 

2. Reached its final disposition during the most recent five year period; and

 

3. Is one of the following:

 

1)

A criminal proceeding that resulted in a conviction, as defined in this award term and condition,

 

2)

A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more,

 

3)

An administrative proceeding, as defined in this award term and condition, that resulted in a finding of fault and liability and the Recipient’s payment of either a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or damages in excess of $100,000; or

 

4)

Any other criminal, civil, or administrative proceeding if:

 

a)

It could have led to an outcome described in this award term and condition,

 

b)

It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on the Recipient’s part; and

 

c)

The requirement in this award term and condition to disclose information about the proceeding does not conflict with applicable laws and regulations.

 

c. Reporting Procedures

 

Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in this award term and condition. The Recipient does not need to submit the information a second time under assistance awards that the Recipient received if the Recipient already provided the information through SAM because the Recipient was required to do so under Federal procurement contracts that the Recipient was awarded.

 

d. Reporting Frequency

 

During any period of time when the Recipient is subject to the requirement in this award term and condition, the Recipient must report proceedings information through SAM for the most recent five year period, either to report new information about any proceeding(s) that it has not reported previously or affirm that there is no new information to report. Recipients that have Federal contract, grant, and cooperative agreement awards with a cumulative total value greater than $10,000,000 must disclose semiannually any information about the criminal, civil, and administrative proceedings.

 

 

DE-NE0009040

X Energy, LLC

 

e. Definitions

 

For purposes of this award term and condition:

 

1. Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the Federal and State level but only in connection with performance of a Federal contract or grant. It does not include audits, site visits, corrective plans, or A. Reporting of Matters Related to Recipient Integrity and Performance.

 

2. Conviction, for purposes of this award term and condition, means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.

 

3. Total value of currently active grants, cooperative agreements, and procurement contracts includes—

 

1)

Only the Federal share of the funding under any Federal award with a recipient cost share or match; and

 

2)

The value of all expected funding increments under a Federal award and options, even if not yet exercised.

 

(47) PERSONNEL (DECEMBER 2014)

 

The individual named in Block 14 of the Assistance Agreement is designated a key person; additional key personnel are listed below. Changes to designated key personnel or participating organizations require prior written DOE approval in accordance with 2 CFR 200.308.

 

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(48) PROHIBITION ON PERSONALLY IDENTIFIABLE INFORMATION (PII)

 

The Recipient / Contractor must not provide PII, either printed or electronic, to the U.S. Department of Energy within any deliverable, report or submittal under this agreement / contract. Personally Identifiable Information (PII) is any information maintained by the Contractor / Recipient about an individual, including but not limited to, education, financial transactions, medical history and criminal or employment history, and information that can be used to distinguish or trace an individual’s identity, such as his/her name, social security number, date and place of birth, mother’s maiden name, biometric data, etc., and including any other personal information that is linked or linkable to a specific individual. This requirement must be incorporated into any and all subcontracts or subagreements to the lowest tier.

 

 

DE-NE0009040

X Energy, LLC

 

(49) CONFIDENTIAL BUSINESS INFORMATION

 

The Government acknowledges that the recipient or its subcontractors may provide to DOE confidential or proprietary business, technical or financial information. DOE will manage this information consistent with the Trade Secrets Act, 18 U.S.C. §1905. DOE will also process any request for release of this information to the public consistent with the Freedom of Information Act (FOIA), 5 U.S.C. §552 and DOE’s FOIA regulations, 10 C.F.R Part 1004. DOE agrees that any confidential business, financial, and legal information provided by the recipient is not “data” within the meaning of the Rights in Data clause.

 

(50) CHANGE OF CONTROL

 

Change of Control is defined as any of the following:

 

1)

Any event by which any individual or entity other than the recipient becomes the beneficial owner of more than 50% of total voting power of the voting stock of the recipient;

 

2)

The recipient merges with or into any entity other than a transaction in which the shares of the recipient’s voting stock are converted into a majority of the voting stock of the surviving entity.

 

3)

The sale, lease or transfer of all or substantially all of the assets of the recipient to any individual or entity other than the recipient in one or a series of related transactions.

 

4)

The adoption of a plan relating to the liquidation or dissolution of the recipient; or

 

5)

Where the recipient is a wholly-owned subsidiary at the time of award or novation, and the recipient’s parent entity undergoes a Change of Control as defined in this section.

 

Upon any Change of Control or if DOE requests the information in writing, the recipient must provide the Contracting Officer with documentation identifying all parties who exercise control in the recipient at the time of award.

 

When there is a Change of Control of a recipient, or the recipient has reason to know a Change of Control is likely, the recipient must notify the Contracting Officer within thirty (30) days of its knowledge of such Change of Control. Such notification must include, at a minimum, copies of documents necessary to reflect the transaction that resulted or will result in the Change of Control, and identification of all entities, individuals or other parties to such transaction. Failure to notify the Contracting Officer of a Change of Control is grounds for suspension of the award or termination for failure to comply with the terms and conditions of the award.

 

The Contracting Officer must authorize a Change of Control for the purposes of the award. Failure to receive the Contracting Officer’s authorization for a Change of Control may lead to a suspension of the award, termination for failure to comply with the terms and conditions of the award, or imposition of special award conditions. Special award conditions may include, but are not limited to: Additional reporting requirements related to the Change of Control; and Suspension of payments due to the recipient.

 

 

DE-NE0009040

X Energy, LLC

 

(51) AWARD PERIOD DURATION AND EXTENSION

 

Awards are for 5 – 7 years, as proposed by the applicant and approved by DOE (see Section (6), titled “Award Project Period and Budget Periods”. In addition, awards may be extended; such extensions may be exercised more than once, but the total extension of performance hereunder shall not exceed 3 years (for a total period of performance of 8 – 10 years). Note that these extensions are not considered “one-time cost extensions”, as contemplated by 2 CFR 200.308(d)(2).

 

Period of performance extensions must remain within the programmatic boundaries of the original Funding Opportunity Announcement (FOA) and be considered meritorious under the original merit review criteria of the announcement (FOA). Substantial changes to the project’s budget and/or scope or objectives will not be approved under this provision if the changes would not be acceptable under the original announcement.

 

Should the Recipient desire an extension of the period of performance, a written request is to be provided to the Contracting Officer no later than six months prior to the scheduled expiration of the project period. The request must detail the rationale/justification for the extension, as well as detail any other changes needed for the award to implement the extended period of performance.

 

The Contracting Officer will review the request and consider the value to the overall success of the project or increased significance and value to the extended project when reviewing request(s) for period of performance extensions. The Contracting Officer will provide the Recipient a preliminary written notice of its intent to extend the period of performance extension within 60 days after receipt of the request and request the recipient provide a revised project plan, budget and supporting documentation, and any other needed information. The preliminary notice does not commit the Government to an extension to the award.

 

After submission of any of the required information and DOE review and approval of it, the Contracting Officer may exercise the period of performance extension by written amendment to the award.

 

(52) ONE TIME EXTENSION

 

As permitted by 2 CFR 200.308(d)(2), a one-time extension of the period of performance by up to 12 months may be granted. However, the following restriction applies: Unilateral no cost time extensions by the recipient will NOT be permitted under this award.

 

The recipient must request any extension from DOE at least 60 days prior to the award’s period of performance end date, unless otherwise agreed to by DOE. Any no cost time extension must receive prior written approval from the DOE Contracting Officer.

 

(53) SPECIAL DISPOSITION OF PROPERTY AT THE END OF THE AWARD

 

The Government does not anticipate providing any Government Furnished Property (GFP) for this award. However, there will be substantial awardee acquired property. Property acquired under the award will need to be dispositioned at the end of the award. This is typically done by the Recipient either returning it to DOE or by the Recipient reimbursing DOE based on the fair market value (FMV) of the property and the DOE participation in the project, i.e., the cost sharing percentage which DOE contributed to the award. As this is a cost shared award under the financial assistance rules an awardee would normally reimburse DOE for the FMV of DOE’s share of any property acquired during performance of the award. However, DOE intends to permit the recipient to continue to use the property after the project period until its useful life (and value) are exhausted for the original purposes of the award.

 

 

DE-NE0009040

X Energy, LLC

 

The intent of the ARD Project is that the Demo reactor not be owned or operated by DOE, but by the recipient, or another private entity; or by a Federal, tribal, state, or municipal utility. The provisions of 2 CFR 200 and 2 CFR 910 allow for the continued operation and use of the reactor by the original awardee. Novation may be allowable in accordance with the procedures of Chapter 1 of Title 48, CFR, Subpart 42.12. If the Recipient desires to sell the reactor to another entity (e.g., a utility, etc.) for continued operation at the end of the award, then DOE may require compensation based on the FMV and DOE participation in the project. 

 

(54) COOPERATIVE AGREEMENT TERMINATION OR RECIPIENT SUSPENSION OF PROJECT WORK

 

In addition to the requirements set forth at 2 CFR 200.339(a)(4), regarding awardee termination of the award or suspension of work, the Recipient must provide the Contracting Officer written notification of its intent to terminate or otherwise suspend work under the award at least 90 days prior to any termination decision/proposed termination date or suspension of work. DOE and the recipient must concur on the terms of the termination or work suspension. To protect DOE’s interest, and notwithstanding other terms and conditions of this award, DOE will become the owner of all intellectual property acquired or developed under the agreement by the Recipient terminating the project with unlimited rights in that intellectual property unless otherwise agreed to in writing by the Contracting Officer. Also, if the Recipient terminates the award early prior to completion of the objectives or otherwise suspends work, property and equipment acquired under the award must be dispositioned in accordance with 2 CF 200.311 and 2 CFR 200.313.

 

(55) COST SHARING ON INVOICES SUBMITTED FOR PAYMENT

 

The recipient must at least meet its cost sharing minimum obligation (as calculated based on total cost incurred to date) on every invoice submitted for payment to ensure that its cost sharing requirement is always met on an on-going basis throughout performance, unless otherwise authorized by the Contracting Officer.

 

The recipients must contribute the required cost share amount incrementally over the life of the award. Standard Form 270, Request for Advance or Reimbursement (hereafter “Invoice”) is to be used for invoices. The recipient is required to submit an Invoice to DOE for payment for reimbursement as the project progresses; the recipient’s cost share amount listed for each billing period must always reflect not less than 50 percent from nonfederal sources overall cost share ratio for the current Budget Period, i.e., the amount of cost sharing included on each Invoice – and the cumulative amount of cost sharing listed relative to the total costs billed - must always be at least equal to the figure calculated by multiplying the total costs of the project incurred to date (including costs incurred by the FFRDC/NL) by the cost sharing percentage required by the award. If the recipient has incurred a greater amount of cost sharing than is required at that point in the Budget Period, the higher amount of cost sharing may be reflected on the Invoice - but in no case may the Invoice ever reflect a lower amount of cost share than is required.

 

(56) TEST AND EVALUATION

 

Test and evaluation of the advanced demonstration reactors will primarily be done by the U.S. Nuclear Regulatory Commission (NRC) for reactors to be licensed by the NRC.

 

 

DE-NE0009040

X Energy, LLC

 

(57) LIABILITY DURING OPERATION OF THE ADVANCED DEMONSTRATION REACTOR

 

Notwithstanding any other terms of this Agreement, the Government shall not be responsible for or have any obligation to the recipient for operation of the advanced demonstration reactor or other recipient facilities operated in connection with the reactor, including any costs which may be incurred by the recipient in connection with the operation of the reactor or related facilities due to the performance of the work under this Agreement, whether said work was performed prior to or subsequent to the effective date of this Agreement or following the end of the project period of this agreement.

 

(58). MILESTONES AND PAYMENTS

 

Recipient’s invoices may be submitted on a monthly, in a manner consistent with Article 8 (Payment Procedures) and Article 55 (Cost Sharing on Invoices Submitted for Payment). DOE staff will conduct invoice reviews on a monthly schedule.

 

DOE and the recipient will continuously evaluate the project execution team’s performance in adhering to the project schedule and in meeting the set of mutually-agreed-upon project milestones during each budget period, and at the budget continuation process at the end of each budget period. Continued invoice payments will be dependent on a determination of adequate project progress as determined by the DOE program manager and technical project officer.

 

(59) POST AWARD CONFERENCE

 

The recipient is required to attend a post-award conference. The recipient will contact the designated TPO for details regarding this meeting. DOE may limit the number of recipient personnel attending. All recipient personnel attending must have a valid ID for security clearance into the building.

 

(60) PROJECT MANAGEMENT PLAN

 

The Project Management Plan (PMP) submitted and approved in the application shall be maintained and implemented by the recipient throughout the project period of performance. Regular updates to the PMP shall be made by the recipient, as necessary, during project performance. All updates shall be submitted to DOE for review and approval.

 

Within 30 days following the post award conference as a first task, the recipient will revise the version of the PMP that was submitted with its application by including details from the negotiation process. The PMP, is updated by the recipient as the project progresses to reflect updates to the approved cost and schedule baselines. The Recipient prepares periodic reports which include schedule and budget variances. The PMP contains the project cost and schedule baseline and is used as a basis to report budget and schedule variances.

 

Post award, in conjunction with a PMP, DOE will jointly develop quality assurance requirements and plans with the Recipient to monitor performance to ensure standards are met. The PMP will not specify how the award recipient will do the work, but rather describe the work in terms of outcomes or results. The PMP will provide flexibility to account for variations and changes in requirements as the project progresses.

 

 

DE-NE0009040

X Energy, LLC

 

(61) COORDINATION AND MANAGEMENT PLAN

 

If the recipient uses multiple project managers (PMs), the recipient must provide for DOE approval a “Coordination and Management Plan” that describes the organization structure of the project as it pertains to the designation of multiple PMs. This plan must be updated by the recipient throughout the project period, as necessary (with a copy of any update provided to DOE). The plan must include (at a minimum):

 

·

Process for making decisions on scientific/technical direction

·

Publications

·

Intellectual property issues

·

Communication plans

·

Procedures for resolving conflicts

·

PMs’ roles and administrative, technical, and scientific responsibilities for the project.

 

(62) WAIVER REQUESTS: PERFORMANCE OF WORK IN THE UNITED STATES

 

Work performed (i.e., purchases and labor) under awards must be performed in the U.S., unless otherwise approved as part of the original application, or during performance, by DOE in accordance with the thresholds set forth in this clause.

 

·      Below $1M: This requirement does not apply to the foreign purchase of supplies and equipment or for foreign labor (cumulative) performed below $1M; however, the Awardee should make reasonable efforts to perform labor and/or purchase supplies and equipment within the U.S. below this threshold.

 

·      At $1M or above, up to $5M, the awardee must notify DOE at least 30 days prior to foreign purchase of supplies and equipment or for foreign labor (cumulative) performed, using the Special Status report specified in the award’s Reporting Requirements checklist.

 

·      Over $5M, the awardee must obtain prior written DOE approval using the Waiver Request for Non-US Work at Appendix F, at least 30 days prior to the foreign purchase of supplies and equipment or for foreign labor (cumulative) performed.

 

In adherence to the above thresholds, awards proposing foreign purchase of supplies and equipment or for foreign labor performed must clearly specify what work is to be done, by which entity, where the work is to be performed, the estimated time period for the work, the estimated dollar value of the work and the rationale for doing the work outside the U.S.

 

The Awardee must flow down these requirements to its subrecipients.

 

(63) DOE APPROVAL FOR SUBAWARDS AND SUBCONTRACTS

 

The Recipient is required to obtain DOE approval on all subcontracts or subawards over $5 million, including all options and/or material modifications thereto, unless these are already otherwise listed in the award’s approved project narrative and/or as listed below:

 

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DE-NE0009040

X Energy, LLC

 

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For subawards, DOE intends to allow the recipient to make subawards to entities that are in the economic interest of the United States; this would be to companies that are either United States-owned, or that are incorporated or organized under the laws of any State and that have a parent company which is incorporated or organized under the laws of a country which affords to the United States-owned companies opportunities, comparable to those afforded to any other company, to participate in any joint venture similar to those authorized under the Energy Policy Act of 1992, 42 U.S.C. 13525; affords to United States-owned companies local investment opportunities comparable to those afforded to any other company; and affords adequate and effective protection for the intellectual property rights of United States-owned companies.

 

In addition, any prime award entity receiving funds of more than $200,000 under the DOE Advanced Small Modular Reactor Research and Development (R&D) program is ineligible to receive funding under this award for the advanced reactor demonstration project.

 

(64) TECHNICAL DIRECTION

 

Performance of the work under this award shall be subject to the technical direction of the DOE Technical Project Officer (TPO). The term “technical direction” is defined to include:

 

·

Providing direction to the Recipient that may redirect award effort, shift work emphasis between work areas or tasks, require pursuit of certain lines of inquiry, fill in details, or otherwise serve to accomplish the project.

 

·

Providing written information to the Recipient that assists in interpreting drawings, specifications, or technical portions of the work description.

 

·

Reviewing and, where required by the award, approving, technical reports, drawings, specifications, and technical information to be delivered by the Recipient to the Government.

 

·

The Recipient will receive a copy of the written TPO designation from the Contracting Officer. It will specify the extent of the TPO’s authority to act on behalf of the Contracting Officer.

 

 

DE-NE0009040

X Energy, LLC

 

Technical direction must be within the scope of work stated in the award. The TPO does not have the authority to, and may not, issue any technical direction that—

 

·

Constitutes an assignment of additional work outside the Project Narrative,

 

·

Constitutes a change,

 

·

In any manner causes an increase or decrease in the total estimated award project cost or the time required for award performance,

 

·

Changes any of the expressed terms, conditions or specifications of the award,

 

·

Interferes with the Recipient’s right to perform the terms and conditions of the award. All technical direction shall be issued in writing by the TPO; or

 

·

Conflicts with US NRC issued permits, licenses or guidance under which the project is performing.

 

The Recipient must proceed promptly with the performance of technical direction duly issued by the TPO in the manner prescribed by this clause and within its authority under the provisions of this clause. If, in the opinion of the Recipient, any instruction or direction by the TPO falls within one of the categories defined as being beyond its authority, in this Section (65), the Recipient must not proceed and must notify the Contracting Officer in writing within five (5) working days after receipt of any such instruction or direction and must request the Contracting Officer to modify the award accordingly. Upon receiving the notification from the Recipient, the Contracting Officer must—

 

·

Advise the Recipient in writing within thirty (30) days after receipt of the Recipient’s letter that the technical direction is within the scope of the award effort and does not constitute a change under the Changes clause of the award,

 

·

Advise the Recipient in writing within a reasonable time that the Government will issue a written change order; or

 

·

Advise the Recipient in writing within a reasonable time not to proceed with the instruction or direction of the TPO.

 

A failure of the Recipient and Contracting Officer either to agree that the technical direction is within the scope of the award or to agree upon the award action to be taken with respect to the technical direction will be subject to a final decision by the Contracting Officer.

 

(65) TECHNICAL PROJECT OFFICER/PROJECT MANAGER AUTHORITY

 

The DOE Technical Project Officer/Project Manager assigned to this award is not authorized to issue, and the Recipient is not required to follow, any technical advice that constitutes work which:

 

·

is not within the agreed work scope approved by the award,

 

·

in any manner causes an increase or decrease in the total estimated Project cost or in the time required for performance of the Project,

 

·

has the effect of changing any of the terms or conditions of the award,

 

·

unduly interferes with the recipient’s contractual negotiations or obligations with third-parties,

 

·

unduly interferes with recipient’s health, safety, security, and environmental obligations whether provided by statute, ordinance or regulation (“law”), or recipient corporate policy that is consistent with law,

 

·

interferes with the recipient’s right to perform the project in accordance with the terms and conditions of the award; or

 

 

DE-NE0009040

X Energy, LLC

 

·

Conflicts with US NRC issued permits, licenses or guidance under which the project is performing.

 

(66) AWARD TERMINATION

 

Government financial assistance rules permit a cooperative agreement to be terminated in whole or in part by the non- Federal entity upon sending to DOE written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, given the importance of the ARD, an awardee can only terminate the award with prior notice to DOE at least 90 days prior to the planned termination date, unless a different time period is approved by the Contracting Officer.

 

(67) ADMINISTRATION BY NON-FEDERAL PERSONNEL

 

The Government may use non-Federal personnel to conduct award oversight and administrative activities. Non-Federal personnel used must sign conflict of interest and non-disclosure agreements prior to doing any of this kind of work regarding the award.

 

(68) RECIPIENT INSPECTION REQUIREMENTS

 

The recipient is responsible for performing the work (including any needed inspections, tests, etc.) under this cooperative agreement such that it conforms to award requirements, including the award’s project plan as well as any applicable technical requirements DOE may also perform specialized inspections or tests in a manner that will not unduly delay work, as it deems necessary.

 

“Work,” as used in this Section (69), includes services performed, workmanship, and material furnished or used in performing work under the award.

 

The recipient shall provide and maintain an inspection system acceptable to the Government covering the work under this award. DOE may perform inspections as necessary to determine Recipient compliance with the cooperative agreement requirements. NRC may also perform technical inspections as required as part of the licensing process. The Recipient is responsible to maintain work records, including of inspections and tests, and provide those when requested by either DOE or NRC.

 

Complete records of work performed (including inspections and tests) by the recipient shall be maintained and made available to the Government during award performance and for as long afterwards as the award requires. The Government has the right to inspect the work called for by the award, to the extent practicable at all places and times during the term of the award. The Government shall perform inspections in a manner that will not unduly delay the work.

 

If any of the work performed does not conform with award requirements, the Government may require the recipient to perform the work again in conformity with award requirements. In accordance with 2 CFR § 200.338, if the recipient fails to comply with Federal statutes, regulations or the terms and conditions of the award, DOE may impose one or more of the additional specific award conditions described in § 200.207 Specific conditions, as appropriate for the circumstances.

 

 

DE-NE0009040

X Energy, LLC

 

(69) REAL ESTATE (LAND) TRANSACTION APPROVAL

 

Should the Recipient propose to acquire land for the project, the Recipient must comply with the Uniform Relocation and Assistance and Real Property Acquisition Act (URA), as implemented by 49 CFR § 24. At least 60 days prior to consummating a land acquisition under the award, the Recipient must submit the proposed real estate transaction to DOE for review and approval by a DOE Real Estate Contracting Officer (RECO). This will be done within 30 days of the Recipient’s submission of the real estate transaction to DOE.

 

Should the Recipient propose that the project is located on DOE- or other Federally-controlled land, an out grant agreement will be required. This will provide a grant of interest or right to the Recipient to use government real property by a lease, easement, license, or permit for the project. This agreement will be subject to normal DOE real estate activity rules and procedures; the Recipient must contact the Contracting Officer at least 150 days in advance of the land need date for guidance and to begin making the arrangements for the out grant.

 

(70) PREPARATION OF COST ESTIMATE FOR CONSTRUCTION OF THE ADVANCED DEMONSTRATION REACTOR

 

a. As agreed to by the parties during performance, the recipient must submit a detailed cost estimate for the construction portion of the Advanced Demonstration Reactor; the cost estimate must be submitted on the forms agreed to by the parties or on copies of those forms. The Recipient will be required to certify that to the best of its knowledge and belief, the cost estimate data are accurate, complete, and current when submitting the cost estimate, and to re-certify this as of the date of agreement on the cost estimate by the parties, or if applicable, an earlier date agreed upon between the parties that is as close as practicable to the date of agreement on the cost estimate.

 

b. The cost estimate form may require the recipient to categorize the costs using various categories, including-

 

1)

Costs provided by subcontractors on a lump sum basis,

2)

Costs provided by subcontractors on target price basis,

3)

Costs provided by subcontractors on a cost reimbursable basis,

4)

Costs provided by subcontractors on a time and material basis,

5)

Costs provided by subcontractors on firm/ fixed price per Unit of construction (e.g. yard of safety related concrete); or

6)

Any combination of paragraphs (b)(1) through (b)(5) of this term.

 

c. If the recipient does not submit the construction cost estimate on all required items, failure to do so may result in the award being terminated without further consideration.

 

(71) RESERVED

 

(72) RESERVED

 

(73) RESERVED

 

(74) RESERVED

 

(75) ORGANIZATION AND DIRECTION OF THE CONSTRUCTION WORK FOR THE ADVANCED DEMONSTRATION REACTOR

 

When the construction portion of this award is executed, the Recipient shall submit to the Contracting Officer a chart showing the project organization with key personnel to be employed in connection with the work under this award, and their respective duties. The Recipient shall keep the data furnished current by supplementing it as additional information becomes available.

 

 

DE-NE0009040

X Energy, LLC

 

Work performance under this award shall be under the full-time resident direction of (1) the Recipient, if the Recipient is an individual; (2) one or more principal partners, if the Recipient is a partnership; or (3) one or more senior officers, if Recipient is a corporation, association, or similar legal entity. However, if the Contracting Officer approves, the Recipient may be represented in the direction of the work by a specific person or persons holding positions other than those identified in this paragraph.

 

(76) SUBAWARDS

 

a. Definitions. As used in this clause-

 

“Approved purchasing system” means a Recipient’s purchasing system that has been reviewed and approved by DOE.

 

“Consent to subaward” means the Contracting Officer’s written consent for the Recipient to enter into a particular subaward.

 

The terms Subaward and Subrecipient are defined in 2 CFR 200, Subpart A.

 

b. If the Recipient does not have an approved purchasing system, consent to subaward is required for any subaward that was not already approved as part of the recipient’s initial application submitted and selected for award in response to the Funding Opportunity Announcement for this program and that (1) Is of the cost- reimbursement, time-and-materials, or labor-hour type; or (2) Is fixed-price and exceeds either $250,000 or 5 percent of the total estimated cost of the award. The Recipient shall notify the Contracting Officer reasonably in advance of placing any subrecipient modification thereof for which consent is required under paragraph (b) of this clause, including the following information:

 

i.

A description of the supplies or services to be sub awarded.

 

ii.

Identification of the type of subaward to be used.

 

iii.

Identification of the proposed subrecipient.

 

iv.

The proposed subaward price.

 

v.

A negotiation memorandum reflecting-

 

1)

The principal elements of the subaward price negotiations,

 

2)

The most significant considerations controlling establishment of initial or revised prices,

 

3)

The reasons for any significant difference between the Recipient’s price objective and the price negotiated; (a) The Recipient is not required to notify the Contracting Officer in advance of entering into any subaward for which consent is not required under paragraph (b) of this Section (77)

 

c. Unless the consent or approval specifically provides otherwise, neither consent by the Contracting Officer to any subaward nor approval of the Recipient’s purchasing system shall constitute a determination:

 

1)

Of the acceptability of any subaward terms or conditions,

 

2)

Of the allowability of any cost under this award; or

 

3)

To relieve the Recipient of any responsibility for performing this award

 

 

DE-NE0009040

X Energy, LLC

 

d.

The Recipient shall give the Awarding Officer immediate written notice of any action or suit filed and prompt notice of any claim made against the Recipient by any subrecipient or vendor that, in the opinion of the Recipient, may result in litigation related in any way to this award, with respect to which the Recipient may be entitled to reimbursement from the Government.

 

(77) GOVERNMENT ACCESS TO CONSTRUCTION PROJECT INFORMATION

 

The Contracting Officer shall have access to recipient construction project information. This access shall be limited to the minimum necessary as determined by the Contracting Officer to verify the Recipient is successfully and efficiently performing the construction portion of the project. The Contracting Officer will make reasonable efforts to ensure this access does not interfere with or unduly delay project work. Access includes but is not limited to the following:

 

o

Drawings and specifications

o

Construction and Execution plans

o

Resource loaded schedules

o

Design functions and requirements for the site final design review

o

Risk management plans

o

Value management and engineering studies and/or plans

o

Acquisition strategies

o

Project execution plans

o

Project controls including earned value management systems

o

Qualifications of the integrated project team.

o

Financial/cost share strategy for funding the construction project

 

(78) RESERVED

 

(79) RESERVED

 

(80) WORK OVERSIGHT IN ENGINEERING, PROCUREMENT, CONSTRUCTION CONTRACT AWARDS

 

The extent and character of the work to be done by the Recipient shall be subject to these terms and conditions, and the general oversight direction, and approval of the Contracting Officer, and as necessary, the NRC.

 

(81) RESERVED

 

(82) ARCHITECTURAL BARRIERS ACT OF 1968 (42 U.S.C. § 4151 ET SEQ.) - CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR

 

The Recipient must ensure that all persons have ready access to, and use, of buildings regardless of disability in the design, construction or alteration of buildings and facilities financed with Federal funds to the extent practicable consistent with existing applicable statute and NRC regulations.

 

(83) EQUAL EMPLOYMENT OPPORTUNITY UNDER E.O. 11246 – CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR

 

E.O. 11246, as amended, requires the recipient and subrecipients performing federally assisted construction projects to provide equal opportunity, without regard to race, color, religion, sex or national origin, to persons employed or seeking employment with them.

  

 

DE-NE0009040

X Energy, LLC

 

(84) PERFORMANCE AND PAYMENT BONDS- CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR

 

Prior to commencement of construction of the advanced reactor, bonding requirements must be met by the recipient. To do this, the recipient may provide DOE with its proposed bonding policy and requirements; these should be submitted to DOE concurrent with the recipient’s continuation award budget(s) which include construction work, but in any event must be provided to the Contracting Officer for review/approval at least 120 days prior to the planned beginning of construction. DOE may accept the bonding policy and requirements of the recipient provided that the Contracting Officer makes a determination that the Federal interest is adequately protected. The required bonds must at least cover the Government portion of the construction cost, but may cover 100 percent of the construction cost as an allowable cost under this award. At a minimum, requirements must be as follows:

 

A performance bond on the part of the recipient for 100 percent of the Government share of the construction cost. A “performance bond” is one executed in connection with a contract for the construction to secure fulfillment of all the Recipient’s/subcontractor’s obligations under such contract/subcontract.

 

A payment bond on the part of the Recipient/subcontractor for 100 percent of the Government share construction contract cost. A “payment bond” is one executed in connection with the construction contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract.

 

Other information pertaining to this is as follows:

 

Definitions. As used in this clause-

 

a. “Original award ceiling” means the award price for the construction of the advanced reactor.

 

b. Forms for required bonds. The recipient shall furnish performance and payment bonds to the Contracting Officer as follows:

 

Performance bonds – use Standard Form 25.

Payment Bonds – use Standard Form 25A

 

Additional bond protection

 

c. The Government may require additional performance and payment bond protection if the price for the construction of the advanced reactor is increased. The increase in protection generally will equal 100 percent of the increase in award price.

 

d. Furnishing executed bonds. The Recipient shall furnish all executed bonds, including any necessary reinsurance agreements, to the Contracting Officer, within the time period specified by the Contracting Officer, but in any event, at least 120 days prior to starting work.

 

e. Surety or other security for bonds. The bonds shall be in the form of firm commitment, supported by corporate sureties whose names appear on the list contained in Treasury Department Circular 570, individual sureties, or by other acceptable security such as postal money order, certified check, cashier’s check, irrevocable letter of credit, or, in accordance with Treasury Department regulations, certain bonds or notes of the United States. Treasury Circular 570 is published in the Federal Register or may be obtained from the:

 

 

DE-NE0009040

X Energy, LLC

 

U.S. Department of the Treasury,

Financial Management,

Service Surety Bond Branch,

3700 East West Highway,

Room 6 F01,

Hyattsville, MD 20782.

Or via the internet at http://www.fms.treas.gov/c570/.

 

(85) RESERVED

(86) RESERVED

(87) RESERVED

(88) RESERVED

(89) RESERVED

 

(90) CONSTRUCTION PERFORMANCE REPORTS

 

For the most part, onsite technical inspections and certified percentage of completion data will be relied on heavily by DOE to monitor progress under the award for construction. However, DOE may require additional performance reports when considered necessary and as directed by the Contracting Officer.

 

(91) REPORTING ON REAL PROPERTY

 

The recipient must submit reports at least annually on the status of real property in which the Federal Government retains an interest, unless the Federal interest in the real property extends 15 years or longer. If the Federal interest attached is for a period of 15 years or more, DOE, at its option, may require the recipient to report at various multi-year frequencies (e.g., every two years or every three years, not to exceed a five-year reporting period; or a Federal awarding agency or pass- through entity may require annual reporting for the first three years of a Federal award and thereafter require reporting every five years). Unless otherwise specified by the Contracting Officer, recipient format for this reporting is acceptable.

 

(92) MATERIAL AND WORKMANSHIP FOR THE CONSTRUCTION OF THE ADVANCED DEMONSTRATION REACTOR

 

All equipment, material, and articles incorporated into the work covered by this award shall comply with applicable NRC quality assurance and safety-related regulations, and (upon issuance) the License for the advanced demonstration reactor.

 

If work is performed at a Federal location, the Contracting Officer may require, in writing, that the Recipient remove from the work any employee the Contracting Officer deems incompetent, careless, or otherwise objectionable.

 

(93) PERMITS AND RESPONSIBILITIES - CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR

 

For the construction portion of this award, the Recipient shall be responsible for obtaining any necessary licenses and permits, and for complying with any Federal, State, and municipal laws, codes, and regulations applicable to the performance of the work. Expenses associated with such permits and licenses shall be deemed allowable costs that are eligible for DOE cost share.

 

The Recipient shall be responsible for all damages to persons or property that occur as a result of the Recipient’s fault or negligence. The Recipient shall also be responsible for all materials delivered and work performed until completion and acceptance of the entire work, except for any completed unit of work which may have been accepted under the award.

 

 

DE-NE0009040

X Energy, LLC

 

(94) EXCUSABLE DELAYS - CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR

 

Except for defaults of subcontractors or subrecipients at any tier, the Recipient shall be in an excusable delay position because of any failure to perform this cooperative agreement under its terms if the failure arises from causes beyond the control and without the fault or negligence of the Recipient. Examples of these causes are (1) acts of God or of the public enemy, (2) acts of the Government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather. In each instance, the failure to perform must be beyond the control and without the fault or negligence of the Recipient. “Default” includes failure to make progress in the work so as to endanger performance.

 

If the failure to perform is caused by the failure of a subcontractor or subrecipient at any tier to perform or make progress, and if the cause of the failure was beyond the control of both the Recipient and subcontractor/subrecipient, and without the fault or negligence of either, the Recipient shall not be deemed to be in default,- unless-

 

·

The subcontracted supplies or services were obtainable from other sources,

 

·

The Contracting Officer ordered the Recipient in writing to purchase these supplies or services from the other source; and

 

·

The Recipient failed to comply reasonably with this order.

 

Upon request of the Recipient, the Contracting Officer shall ascertain the facts and extent of the failure. If the Contracting Officer determines that any failure to perform results from one or more of the causes above, the completion time shall be revised, subject to the rights of the Government to terminate this cooperative agreement.

 

(95) RESERVED

 

(96) BUDGET TRANSFERS BETWEEN CONSTRUCTION AND NON-CONSTRUCTION WORK

 

This award includes both construction and non-construction work. In the event that a single budget period contains scope of work for both construction and non-construction work, the recipient is required to notify DOE at least 30 days in advance of making any fund or budget transfers between the two types of work supported that exceed a cumulative value of $2M within a specific budget period, considering the immediate transfer as well as all prior transfers within the current budget period, unless otherwise authorized by the Contracting Officer.

 

(97) DIRECT COST FUNDS TRANSFERS

 

The Recipient is restricted from transferring funds between direct cost categories within the total budget; the cumulative amount of such transfers must not exceed $2M for the current Budget Period, as last approved by DOE. For funds transfers that are greater than$2M, the recipient must obtain prior DOE Contracting Officer approval.

 

 

DE-NE0009040

X Energy, LLC

 

(98) RESTRICTION ON SMR FUNDING

 

Any prime award entity other than a national laboratory that receives fiscal year 2020 funds of more than $200,000 under the US Department of Energy Advanced Small Modular Reactor Research and Development (SMR R&D) program is not eligible to receive fiscal year 2020 funds from within the Advanced Reactor Demonstration Program. Further, funds provided under the Advanced Reactor Demonstration project award are not permitted to be used for the SMR R&D award activities.

 

(99) CONTINGENCY FOR CONSTRUCTION OF THE ADVANCED DEMONSTATION REACTOR

 

a. Contingency is that part of a budget estimate of future construction costs associated with possible events or conditions arising from causes the precise outcome of which is indeterminable at the time of estimate, and that experience shows will likely result, in aggregate, in additional costs for the project. Amounts for major project scope changes, unforeseen risks, or extraordinary events are excluded from contingency estimates.

 

b. It is permissible for contingency amounts, other than those excluded in paragraph (a) of this clause, to be explicitly included in budget estimates for the construction portion of this award, to the extent they are necessary to improve the precision of those estimates. Amounts must be estimated using broadly-accepted cost estimating methodologies, specified in the budget documentation of the award, and accepted by DOE. As such, any contingency amounts are to be included in the award. In order for actual costs incurred to be allowable, they must comply with the cost principles, other requirements in this award, and national policy requirements; be necessary and reasonable for proper and efficient accomplishment of project; and be verifiable from the recipient’s records.

 

c. Payments made by DOE to the recipient’s “contingency reserve” or any similar payment, made for events the occurrence of which cannot be foretold with certainty as to the time or intensity, or with an assurance of their happening, are unallowable, except as noted in § 200.431 Compensation—fringe benefits regarding self- insurance, pensions, severance and post-retirement health costs, and § 200.447 Insurance and indemnification.

 

(100) RESERVED

 

(101) DOE RIGHT TO REVIEW RECIPIENT SYSTEMS

 

During performance of this award, DOE reserves the right for any reason to assess the recipient’s continued ability to manage the financial aspects of an award and its plans to accomplish project activities with reasonable economy and efficiency. The standards for acceptable financial management are found at 2 CFR Part 200.302. This may include a review of different recipient systems, including but not limited to:

 

1)

The recipient’s accounting system to determine whether it is adequate for the accumulation and segregation of costs on a project-by-project basis and whether its books of account are adequate for and suited to the organization’s business.

 

2)

The recipient’s purchasing procedures to determine if they exist in written form and whether they result in effective, economical, and well-documented procurement.

 

3)

The recipient’s personnel practices and procedures to determine if they exist in written form, whether they provide for adequate separation of responsibilities for hiring, dismissal, promotion, etc., and whether the organization can meet the cost principle standards for documenting its payroll.

 

4)

The existence and adequacy of other written procedures governing travel, use of consultants, and property management.

 

5)

The organizational structure and assignment of functional responsibilities to determine whether the organization can adequately safeguard its assets provide accurate and dependable financial and cost data, and whether employees can adequately discharge their responsibilities and adhere to established policies.

 

6)

The recipient’s make-or-buy program when necessary to ensure negotiation of reasonable award prices, satisfactory performance, or implementation of socioeconomic policies.

 

 

Intellectual Property Provisions (CDSB-115)
Cooperative Agreement - Special Data Statute
Research, Development, or Demonstration

Domestic Small Business

 

01.	FAR 52.227-1	Authorization and Consent (DEC 2007) Alternate I (APR 1984)
02.	FAR 52.227-2	Notice and Assistance Regarding Patent and Copyright Infringement (DEC 2007)
03.	2 CFR 910 Appendix A of Subpart D	Rights in Data – Programs Covered under Special Data Statutes
04.	2 CFR 910 Appendix A of Subpart D	Patent Rights (Small Business Firms and Nonprofit Organizations)

 

NOTE: In reading these provisions, any reference to “contractor” shall mean “recipient,” and any reference to “contract” or “subcontract” shall mean “award” or “subaward.”

 

 

01. FAR 52.227-1 Authorization and Consent (DEC 2007) Alternate I (APR 1984)

 

(a) The Government authorizes and consents to all use and manufacture of any invention described in and covered by a United States patent in the performance of this contract or any subcontract at any tier.

 

(b) The Contractor shall include the substance of this clause, including this paragraph (b), in all subcontracts that are expected to exceed the simplified acquisition threshold. However, omission of this clause from any subcontract, including those at or below the simplified acquisition threshold, does not affect this authorization and consent.

 

(End of clause)

 

02. FAR 52.227-2 Notice and Assistance Regarding Patent and Copyright Infringement (DEC 2007)

 

(a) The Contractor shall report to the Contracting Officer, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this contract of which the Contractor has knowledge.

 

(b) In the event of any claim or suit against the Government on account of any alleged patent or copyright infringement arising out of the performance of this contract or out of the use of any supplies furnished or work or services performed under this contract, the Contractor shall furnish to the Government, when requested by the Contracting Officer, all evidence and information in the Contractor's possession pertaining to such claim or suit. Such evidence and information shall be furnished at the expense of the Government except where the Contractor has agreed to indemnify the Government.

 

(c) The Contractor shall include the substance of this clause, including this paragraph (c), in all subcontracts that are expected to exceed the simplified acquisition threshold.

 

(End of clause)

 

03. 2 CFR 910, Appendix A of Subpart D, Rights in Data - Programs Covered Under Special Data Statutes

 

(a) Definitions

 

Computer Data Bases, as used in this clause, means a collection of data in a form capable of, and for the purpose of, being stored in, processed, and operated on by a computer. The term does not include computer software.

 

Computer software, as used in this clause, means

 

(i) computer programs which are data comprising a series of instructions, rules, routines, or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations and

 

(ii) data comprising source code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the computer program to be produced, created or compiled. The term does not include computer data bases.

 

 

Data, as used in this clause, means recorded information, regardless of form or the media on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to administration, such as financial, administrative, cost or pricing or management information.

 

Form, fit, and function data, as used in this clause, means data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability as well as data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements except that for computer software it means data identifying source, functional characteristics, and performance requirements but specifically excludes the source code, algorithm, process, formulae, and flow charts of the software.

 

Limited rights data, as used in this clause, means data (other than computer software) developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged.

 

Restricted computer software, as used in this clause, means computer software developed at private expense and that is a trade secret; is commercial or financial and confidential or privileged; or is published copyrighted computer software; including modifications of such computer software.

 

Protected data, as used in this clause, means technical data or commercial or financial data first produced in the performance of the award which, if it had been obtained from and first produced by a non-federal party, would be a trade secret or commercial or financial information that is privileged or confidential under the meaning of 5 U.S.C. 552(b)(4) and which data is marked as being protected data by a party to the award.

 

Protected rights, as used in this clause, mean the rights in protected data set forth in the Protected Rights Notice of paragraph (g) of this clause.

 

Technical data, as used in this clause, means that data which are of a scientific or technical nature. Technical data does not include computer software, but does include manuals and instructional materials and technical data formatted as a computer data base.

 

Unlimited rights, as used in this clause, means the right of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose whatsoever, and to have or permit others to do so.

 

(b) Allocation of Rights

 

(1) Except as provided in paragraph (c) of this clause regarding copyright, the Government shall have unlimited rights in—

 

(i) Data specifically identified in this agreement as data to be delivered without restriction;

 

(ii) Form, fit, and function data delivered under this agreement;

 

(iii) Data delivered under this agreement (except for restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under this agreement; and

 

(iv) All other data delivered under this agreement unless provided otherwise for protected data in accordance with paragraph (g) of this clause or for limited rights data or restricted computer software in accordance with paragraph (h) of this clause.

 

 

(2) The Recipient shall have the right to—

 

(i) Protect rights in protected data delivered under this agreement in the manner and to the extent provided in paragraph (g) of this clause;

 

(ii) Withhold from delivery those data which are limited rights data or restricted computer software to the extent provided in paragraph (h) of this clause;

 

(iii) Substantiate use of, add, or correct protected rights or copyrights notices and to take other appropriate action, in accordance with paragraph (e) of this clause; and

 

(iv) Establish claim to copyright subsisting in data first produced in the performance of this agreement to the extent provided in paragraph (c)(1) of this clause.

 

(c) Copyright

 

(1) Data first produced in the performance of this agreement. Except as otherwise specifically provided in this agreement, the Recipient may establish, without the prior approval of the Contracting Officer, claim to copyright subsisting in any data first produced in the performance of this agreement. If claim to copyright is made, the Recipient shall affix the applicable copyright notice of 17 U.S.C. 401 or 402 and acknowledgment of Government sponsorship (including agreement number) to the data when such data are delivered to the Government, as well as when the data are published or deposited for registration as a published work in the U.S. Copyright Office. For such copyrighted data, including computer software, the Recipient grants to the Government, and others acting on its behalf, a paid-up nonexclusive, irrevocable, worldwide license to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government, for all such data.

 

(2) Data not first produced in the performance of this agreement. The Recipient shall not, without prior written permission of the Contracting Officer, incorporate in data delivered under this agreement any data that are not first produced in the performance of this agreement and that contain the copyright notice of 17 U.S.C. 401 or 402, unless the Recipient identifies such data and grants to the Government, or acquires on its behalf, a license of the same scope as set forth in paragraph (c)(1) of this clause; provided, however, that if such data are computer software, the Government shall acquire a copyright license as set forth in paragraph (h)(3) of this clause if included in this agreement or as otherwise may be provided in a collateral agreement incorporated or made a part of this agreement.

 

(3) Removal of copyright notices. The Government agrees not to remove any copyright notices placed on data pursuant to this paragraph (c), and to include such notices on all reproductions of the data.

 

(d) Release, Publication and Use of Data

 

(1) The Receipt shall have the right to use, release to others, reproduce, distribute, or publish any data first produced or specifically used by the Recipient in the performance of this contract, except to the extent such data may be subject to the Federal export control or national security laws or regulations, or unless otherwise provided in this paragraph of this clause or expressly set forth in this contract.

 

(2) The Recipient agrees that to the extent it receives or is given access to data necessary for the performance of this agreement which contain restrictive markings, the Recipient shall treat the data in accordance with such markings unless otherwise specifically authorized in writing by the Contracting Officer.

 

 

(e) Unauthorized Marking of Data

 

(1) Notwithstanding any other provisions of this agreement concerning inspection or acceptance, if any data delivered under this agreement are marked with the notices specified in paragraph (g)(2) or (g)(3) of this clause and use of such is not authorized by this clause, or if such data bears any other restrictive or limiting markings not authorized by this agreement, the Contracting Officer may at any time either return the data to the Recipient or cancel or ignore the markings. However, the following procedures shall apply prior to canceling or ignoring the markings.

 

(i) The Contracting Officer shall make written inquiry to the Recipient affording the Recipient 30 days from receipt of the inquiry to provide written justification to substantiate the propriety of the markings;

 

(ii) If the Recipient fails to respond or fails to provide written justification to substantiate the propriety of the markings within the 30-day period (or a longer time not exceeding 90 days approved in writing by the Contracting Officer for good cause shown), the Government shall have the right to cancel or ignore the markings at any time after said period and the data will no longer be made subject to any disclosure prohibitions.

 

(iii) If the Recipient provides written justification to substantiate the propriety of the markings within the period set in subdivision (e)(1)(i) of this clause, the Contracting Officer shall consider such written justification and determine whether or not the markings are to be cancelled or ignored. If the Contracting Officer determines that the markings are authorized, the Recipient shall be so notified in writing. If the Contracting Officer determines, with concurrence of the head of the contracting activity, that the markings are not authorized, the Contracting Officer shall furnish the Recipient a written determination, which determination shall become the final agency decision regarding the appropriateness of the markings unless the Recipient files suit in a court of competent jurisdiction within 90 days of receipt of the Contracting Officer's decision. The Government shall continue to abide by the markings under this subdivision (e)(1)(iii) until final resolution of the matter either by the Contracting Officer's determination become final (in which instance the Government shall thereafter have the right to cancel or ignore the markings at any time and the data will no longer be made subject to any disclosure prohibitions), or by final disposition of the matter by court decision if suit is filed.

 

(2) The time limits in the procedures set forth in paragraph (e)(1) of this clause may be modified in accordance with agency regulations implementing the Freedom of Information Act (5 U.S.C. 552) if necessary to respond to a request thereunder.

 

(f) Omitted or Incorrect Markings

 

(1) Data delivered to the Government without either the limited rights or restricted rights notice as authorized by paragraph (g) of this clause, or the copyright notice required by paragraph (c) of this clause, shall be deemed to have been furnished with unlimited rights, and the Government assumes no liability for the disclosure, use, or reproduction of such data. However, to the extent the data has not been disclosed without restriction outside the Government, the Recipient may request, within 6 months (or a longer time approved by the Contracting Officer for good cause shown) after delivery of such data, permission to have notices placed on qualifying data at the Recipient's expense, and the Contracting Officer may agree to do so if the Recipient—

 

(i) Identifies the data to which the omitted notice is to be applied;

 

(ii) Demonstrates that the omission of the notice was inadvertent;

 

 

(iii) Establishes that the use of the proposed notice is authorized; and

 

(iv) Acknowledges that the Government has no liability with respect to the disclosure, use, or reproduction of any such data made prior to the addition of the notice or resulting from the omission of the notice.

 

(2) The Contracting Officer may also:

 

(i) Permit correction at the Recipient's expense of incorrect notices if the Recipient identifies the data on which correction of the notice is to be made, and demonstrates that the correct notice is authorized; or

 

(ii) Correct any incorrect notices.

 

(g) Rights to Protected Data

 

(1) The Recipient may, with the concurrence of DOE, claim and mark as protected data, any data first produced in the performance of this award that would have been treated as a trade secret if developed at private expense. Any such claimed “protected data” will be clearly marked with the following Protected Rights Notice, and will be treated in accordance with such Notice, subject to the provisions of paragraphs (e) and (f) of this clause.

 

Protected Rights Notice

 

These protected data were produced under agreement no.         with the U.S. Department of Energy and may not be published, disseminated, or disclosed to others outside the Government until (Note:) The period of protection of such data is fully negotiable, but cannot exceed the applicable statutorily authorized maximum), unless express written authorization is obtained from the recipient. Upon expiration of the period of protection set forth in this Notice, the Government shall have unlimited rights in this data. This Notice shall be marked on any reproduction of this data, in whole or in part.

 

(End of notice)

 

(2) Any such marked Protected Data may be disclosed under obligations of confidentiality for the following purposes:

 

(a) For evaluation purposes under the restriction that the “Protected Data” be retained in confidence and not be further disclosed; or

 

(b) To subcontractors or other team members performing work under the Government's (insert name of program or other applicable activity) program of which this award is a part, for information or use in connection with the work performed under their activity, and under the restriction that the Protected Data be retained in confidence and not be further disclosed.

 

(3) The obligations of confidentiality and restrictions on publication and dissemination shall end for any Protected Data:

 

(a) At the end of the protected period;

 

(b) If the data becomes publicly known or available from other sources without a breach of the obligation of confidentiality with respect to the Protected Data;

 

 

(c) If the same data is independently developed by someone who did not have access to the Protected Data and such data is made available without obligations of confidentiality; or

 

(d) If the Recipient disseminates or authorizes another to disseminate such data without obligations of confidentiality.

 

(4) However, the Recipient agrees that the following types of data are not considered to be protected and shall be provided to the Government when required by this award without any claim that the data are Protected Data. The parties agree that notwithstanding the following lists of types of data, nothing precludes the Government from seeking delivery of additional data in accordance with this award, or from making publicly available additional non-protected data, nor does the following list constitute any admission by the Government that technical data not on the list is Protected Data. (Note: It is expected that this paragraph will specify certain types of mutually agreed upon data that will be available to the public and will not be asserted by the recipient/contractor as limited rights or protected data).

 

(5) The Government's sole obligation with respect to any protected data shall be as set forth in this paragraph (g).

 

(h) Protection of Limited Rights Data

 

When data other than that listed in paragraphs (b)(1)(i), (ii), and (iii) of this clause are specified to be delivered under this agreement and such data qualify as either limited rights data or restricted computer software, the Recipient, if the Recipient desires to continue protection of such data, shall withhold such data and not furnish them to the Government under this agreement. As a condition to this withholding the Recipient shall identify the data being withheld and furnish form, fit, and function data in lieu thereof.

 

(i) Subaward/Contract

 

The Recipient has the responsibility to obtain from its subrecipients/contractors all data and rights therein necessary to fulfill the Recipient's obligations to the Government under this agreement. If a subrecipient/contractor refuses to accept terms affording the Government such rights, the Recipient shall promptly bring such refusal to the attention of the Contracting Officer and not proceed with subaward/contract award without further authorization.

 

(j) Additional Data Requirements

 

In addition to the data specified elsewhere in this agreement to be delivered, the Contracting Officer may, at any time during agreement performance or within a period of 3 years after acceptance of all items to be delivered under this agreement, order any data first produced or specifically used in the performance of this agreement. This clause is applicable to all data ordered under this subparagraph. Nothing contained in this subparagraph shall require the Recipient to deliver any data the withholding of which is authorized by this clause or data which are specifically identified in this agreement as not subject to this clause. When data are to be delivered under this subparagraph, the Recipient will be compensated for converting the data into the prescribed form, for reproduction, and for delivery.

 

(k) The Recipient agrees, except as may be otherwise specified in this agreement for specific data items listed as not subject to this paragraph, that the Contracting Officer or an authorized representative may, up to three years after acceptance of all items to be delivered under this contract, inspect at the Recipient's facility any data withheld pursuant to paragraph (h) of this clause, for purposes of verifying the Recipient's assertion pertaining to the limited rights or restricted rights status of the data or for evaluating work performance. Where the Recipient whose data are to be inspected demonstrates to the Contracting Officer that there would be a possible conflict of interest if the inspection were made by a particular representative, the Contracting Officer shall designate an alternate inspector.

 

(End of clause)

 

 

04. 2 CFR 910, Appendix A of Subpart D, Patent Rights (Small Business Firms and Nonprofit Organizations)

 

(a) Definitions

 

Invention means any invention or discovery which is or may be patentable or otherwise protectable under title 35 of the United States Code, or any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 U.S.C. 2321 et seq.).

 

Made when used in relation to any invention means the conception or first actual reduction to practice of such invention.

 

Nonprofit organization is defined in 2 CFR 200.70.

 

Practical application means to manufacture in the case of a composition or product, to practice in the case of a process or method, or to operate in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are to the extent permitted by law or Government regulations available to the public on reasonable terms.

 

Small business firm means a small business concern as defined at section 2 of Public Law 85-536 (16 U.S.C. 632) and implementing regulations of the Administrator of the Small Business Administration. For the purpose of this clause, the size standards for small business concerns involved in Government procurement and subcontracting at 13 CFR 121.3 through 121.8 and 13 CFR 121.3 through 121.12, respectively, will be used.

 

Subject invention means any invention of the Recipient conceived or first actually reduced to practice in the performance of work under this award, provided that in the case of a variety of plant, the date of determination (as defined in section 41(d) of the Plant Variety Protection Act, 7 U.S.C. 2401(d) must also occur during the period of award performance.

 

(b) Allocation of Principal Rights

 

The Recipient may retain the entire right, title, and interest throughout the world to each subject invention subject to the provisions of this Patent Rights clause and 35 U.S.C. 203. With respect to any subject invention in which the Recipient retains title, the Federal Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the U.S. the subject invention throughout the world.

 

(c) Invention Disclosure, Election of Title and Filing of Patent Applications by Recipient

 

(1) The Recipient will disclose each subject invention to DOE within two months after the inventor discloses it in writing to Recipient personnel responsible for the administration of patent matters. The disclosure to DOE shall be in the form of a written report and shall identify the award under which the invention was made and the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding to the extent known at the time of disclosure, of the nature, purpose, operation, and the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also identify any publication, on sale or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to DOE, the Recipient will promptly notify DOE of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the Recipient.

 

 

(2) The Recipient will elect in writing whether or not to retain title to any such invention by notifying DOE within two years of disclosure to DOE. However, in any case where publication, on sale, or public use has initiated the one-year statutory period wherein valid patent protection can still be obtained in the U.S., the period for election of title may be shortened by the agency to a date that is no more than 60 days prior to the end of the statutory period.

 

(3) The Recipient will file its initial patent application on an invention to which it elects to retain title within one year after election of title or, if earlier, prior to the end of any statutory period wherein valid patent protection can be obtained in the U.S. after a publication, on sale, or public use. The Recipient will file patent applications in additional countries or international patent offices within either ten months of the corresponding initial patent application, or six months from the date when permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications when such filing has been prohibited by a Secrecy Order.

 

(4) Requests for extension of the time for disclosure to DOE, election, and filing under subparagraphs (c)(1), (2), and (3) of this clause may, at the discretion of DOE, be granted.

 

(d) Conditions When the Government May Obtain Title

 

The Recipient will convey to DOE, upon written request, title to any subject invention:

 

(1) If the Recipient fails to disclose or elect the subject invention within the times specified in paragraph (c) of this patent rights clause, or elects not to retain title; provided that DOE may only request title within 60 days after learning of the failure of the Recipient to disclose or elect within the specified times;

 

(2) In those countries in which the Recipient fails to file patent applications within the times specified in paragraph (c) of this Patent Rights clause; provided, however, that if the Recipient has filed a patent application in a country after the times specified in paragraph (c) of this Patent Rights clause, but prior to its receipt of the written request of DOE, the Recipient shall continue to retain title in that country; or

 

(3) In any country in which the Recipient decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in a reexamination or opposition proceeding on, a patent on a subject invention.

 

(e) Minimum Rights to Recipient and Protection of the Recipient Right To File

 

(1) The Recipient will retain a non-exclusive royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the Recipient fails to disclose the subject invention within the times specified in paragraph (c) of this Patent Rights clause. The Recipient's license extends to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the Recipient is a party and includes the right to grant sublicenses of the same scope of the extent the Recipient was legally obligated to do so at the time the award was awarded. The license is transferable only with the approval of DOE except when transferred to the successor of that part of the Recipient's business to which the invention pertains.

 

(2) The Recipient's domestic license may be revoked or modified by DOE to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR part 404 and the agency's licensing regulation, if any. This license will not be revoked in that field of use or the geographical areas in which the Recipient has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at discretion of the funding Federal agency to the extent the Recipient, its licensees, or its domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.

 

 

(3) Before revocation or modification of the license, the funding Federal agency will furnish the Recipient a written notice of its intention to revoke or modify the license, and the Recipient will be allowed thirty days (or such other time as may be authorized by DOE for good cause shown by the Recipient) after the notice to show cause why the license should not be revoked or modified. The Recipient has the right to appeal, in accordance with applicable regulations in 37 CFR part 404 and the agency's licensing regulations, if any, concerning the licensing of Government-owned inventions, any decision concerning the revocation or modification of its license.

 

(f) Recipient Action To Protect Government's Interest

 

(1) The Recipient agrees to execute or to have executed and promptly deliver to DOE all instruments necessary to:

 

(i) Establish or confirm the rights the Government has throughout the world in those subject inventions for which the Recipient retains title; and

 

(ii) Convey title to DOE when requested under paragraph (d) of this Patent Rights clause, and to enable the government to obtain patent protection throughout the world in that subject invention.

 

(2) The Recipient agrees to require, by written agreement, its employees, other than clerical and non- technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the Recipient each subject invention made under this award in order that the Recipient can comply with the disclosure provisions of paragraph (c) of this Patent Rights clause, and to execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject inventions. The disclosure format should require, as a minimum, the information requested by paragraph (c)(1) of this Patent Rights clause. The Recipient shall instruct such employees through the employee agreements or other suitable educational programs on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.

 

(3) The Recipient will notify DOE of any decision not to continue prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than 30 days before the expiration of the response period required by the relevant patent office.

 

(4) The Recipient agrees to include, within the specification of any U.S. patent application and any patent issuing thereon covering a subject invention, the following statement: “This invention was made with Government support under (identify the award) awarded by (identify DOE). The Government has certain rights in this invention.”

 

(g) Subaward/Contract

 

(1) The Recipient will include this Patent Rights clause, suitably modified to identify the parties, in all subawards/contracts, regardless of tier, for experimental, developmental or research work to be performed by a small business firm or nonprofit organization. The subrecipient/contractor will retain all rights provided for the Recipient in this Patent Rights clause, and the Recipient will not, as part of the consideration for awarding the subcontract, obtain rights in the subcontractors' subject inventions.

 

 

(2) The Recipient will include in all other subawards/contracts, regardless of tier, for experimental, developmental or research work, the patent rights clause required by 2 CFR 910.362(c).

 

(3) In the case of subawards/contracts at any tier, DOE, the Recipient, and the subrecipient/contractor agree that the mutual obligations of the parties created by this clause constitute a contract between the subrecipient/contractor and DOE with respect to those matters covered by the clause.

 

(h) Reporting on Utilization of Subject Inventions

 

The Recipient agrees to submit on request periodic reports no more frequently than annually on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the Recipient or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the Recipient and such other data and information as DOE may reasonably specify. The Recipient also agrees to provide additional reports in connection with any march-in proceeding undertaken by DOE in accordance with paragraph (j) of this Patent Rights clause. As required by 35 U.S.C. 202(c)(5), DOE agrees it will not disclose such information to persons outside the Government without the permission of the Recipient.

 

(i) Preference for United States Industry.

 

Notwithstanding any other provision of this Patent Rights clause, the Recipient agrees that neither it nor any assignee will grant to any person the exclusive right to use or sell any subject invention in the U.S. unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the U.S. However, in individual cases, the requirement for such an agreement may be waived by DOE upon a showing by the Recipient or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the U.S. or that under the circumstances domestic manufacture is not commercially feasible.

 

(j) March-in-Rights

 

The Recipient agrees that with respect to any subject invention in which it has acquired title, DOE has the right in accordance with procedures at 37 CFR 401.6 and any supplemental regulations of the Agency to require the Recipient, an assignee or exclusive licensee of a subject invention to grant a non-exclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances and if the Recipient, assignee, or exclusive licensee refuses such a request, DOE has the right to grant such a license itself if DOE determines that:

 

(1) Such action is necessary because the Recipient or assignee has not taken or is not expected to take within a reasonable time, effective steps to achieve practical application of the subject invention in such field of use;

 

(2) Such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the Recipient, assignee, or their licensees;

 

(3) Such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by the Recipient, assignee, or licensee; or

 

(4) Such action is necessary because the agreement required by paragraph (i) of this Patent Rights clause has not been obtained or waived or because a licensee of the exclusive right to use or sell any subject invention in the U.S. is in breach of such agreement.

 

(k) Special Provisions for Awards With Nonprofit Organizations

 

 

If the Recipient is a nonprofit organization, it agrees that:

 

(1) Rights to a subject invention in the U.S. may not be assigned without the approval of DOE, except where such assignment is made to an organization which has as one of its primary functions the management of inventions, provided that such assignee will be subject to the same provisions as the Recipient;

 

(2) The Recipient will share royalties collected on a subject invention with the inventor, including Federal employee co-inventors (when DOE deems it appropriate) when the subject invention is assigned in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;

 

(3) The balance of any royalties or income earned by the Recipient with respect to subject inventions, after payment of expenses (including payments to inventors) incidental to the administration of subject inventions, will be utilized for the support of scientific or engineering research or education; and

 

(4) It will make efforts that are reasonable under the circumstances to attract licensees of subject inventions that are small business firms and that it will give preference to a small business firm if the Recipient determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided that the Recipient is also satisfied that the small business firm has the capability and resources to carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the Recipient. However, the Recipient agrees that the Secretary of Commerce may review the Recipient's licensing program and decisions regarding small business applicants, and the Recipient will negotiate changes to its licensing policies, procedures or practices with the Secretary when the Secretary's review discloses that the Recipient could take reasonable steps to implement more effectively the requirements of this paragraph (k)(4).

 

(l) Communications

 

All communications required by this Patent Rights clause should be sent to the DOE Patent Counsel address listed in the Award Document.

 

(m) Electronic Filing

 

Unless otherwise specified in the award, the information identified in paragraphs (f)(2) and (f)(3) may be electronically filed.

 

(End of clause)

 

 

DE-NE0009040

 

B2 STATEMENT OF SUBSTANTIAL INVOLVEMENT

 

X-energy and Energy Northwest Deploy First
Commercial-Scale Advanced Reactor by [**]

 

DEMOS

 

a. DOE anticipates having substantial involvement during the project period, through technical assistance, advice, intervention, integration with other awardees performing related activities, and technical transfer activities. The recipient's responsibilities are listed in paragraph b and DOE's responsibilities are listed in paragraph c.

 

b. Recipient's responsibilities.

 

The recipient is responsible for:

 

1.

Performing the activities supported by this award, including providing the required personnel, facilities, equipment, construction, licensing activities, supplies andservices;

 

2.

Defining approaches and plans, submitting the plans to DOE for review, and incorporating DOE's comments;

 

3.

Managing and conducting the project activities, including coordinating with DOE contractors as needed;

 

4.

Attending annual program review meetings and reporting project status;

 

5.

Submitting technical reports as stated in the Federal Assistance Reporting Checklist, and incorporating DOE comments;

 

6.

Updating project costs and performance data in the DOE-NE Performance Information Collection System (PICS). Recipient personnel will update project information at the work breakdown level agreed to in separate negotiations. Schedules will be developed at the appropriate level of detail to define work, key milestones will be provided with the reasonable costs assigned, and personnel will be assigned clear responsibility to update and submit work package information; and

 

7.

Presenting project results at appropriate technical conferences or meetings as directed by the DOE Project Officer.

 

8.

Providing DOE-NE Program Accrual Information. DOE requires the monthly tracking of uncosted obligations on financial assistance awards in the DOE accounting system to assist DOE in accomplishing more accurate project management and to more accurately recognize Department liabilities to the recipient. DOE personnel do this internally by subtracting paid costs and any costs accrued (yet to be paid incurred costs of the recipient) from the amounts obligated on the financial assistance award. In accomplishing this, DOE may request the recipient provide additional cost accrual information to accurately estimate/document the accrual in the DOE accounting system. If such information is needed DOE will normally do this using an e-mail to the recipient requesting the recipient identify the dollar value of work it has performed each month but not yet invoiced as of month end. Recipients will cooperate with DOE in providing the needed cost accrual information.

 

 

DE-NE0009040

 

c. DOE responsibilities.

 

Normal Federal Stewardship Responsibilities

 

DOE is responsible for executing normal Federal stewardship responsibilities, including:

 

1.

Approving recipient plans prior to award.

 

2.

Providing technical assistance prior to the start of the activity and assuring the recipient understands this prior to award, if requested by the recipient.

 

3.

Providing technical assistance to correct deficiencies in project or financial performance when reports or monitoring indicates some sort of problem.

 

4.

Performing site visits.

 

5.

Reviewing financial, performance, and audit reports.

 

6.

Performing technical reviews to determine whether to continue funding the next budget period.

 

7.

Reviewing performance to ensure that the objectives, terms, and conditions of the award are accomplished.

 

8.

Providing general administrative requirements, such as prior approvals required by the financial assistance regulations and/or OMB Circulars.

 

9.

Reviewing performance after completion.

 

DOE Substantial Federal Involvement

 

DOE has substantial involvement in work performed under cooperative agreements made as a result of this FOA. DOE does not limit its involvement to the administrative requirements of the Award. Instead, DOE has substantial involvement in collaborating with the recipient on the direction and redirection of various aspects of the project as a whole. Substantial involvement includes, but is not limited to, the following:

 

1.

DOE may collaborate with the recipient on the management, control, direction, and performance of the Project.

 

2.

DOE may make any continuation application contingent upon the recipient’s changing the conduct or performance of work under this if recipient is not meeting agreed upon project milestones.

 

3.

DOE may participate in mutually-agreed major project decision-making processes.

 

4.

DOE may promote and facilitate technology awareness activities, including disseminating program results through presentations and publications, subject to provisions on maintaining protection of confidential or proprietary information.

 

5.

DOE may serve as scientific/technical liaison between awardees and other project stakeholders.

 

In addition, DOE may perform the following in the conduct of the award:

 

1.

Reviewing in a timely manner annual project work plans, deliverables, and/or continuation requests and modifications, as well as technology transfer plans, and collaborating with recipient on the work effort if the plans do not address critical programmatic issues;

 

 

DE-NE0009040

 

2.

Conducting semiannual and/or annual program review meetings to ensure adequate progress and that the work accomplishes the program and project activities. At the appropriate project review meetings, the award recipient will provide progress status and issues and present the detailed work plan and budget requirements for the following period. In addition to these scheduled reviews, DOE may conduct unscheduled reviews, if necessary, on a non-interference basis, which may be used by DOE for assessments of whether to have continued performance of the awards.

 

3.

Collaborating with recipient on redirection of work or shifting work emphasis, if needed; participating in recipient periodic project status, technical or progress review meetings and conference calls; this includes additional monitoring to permit specified kinds of collaboration on direction or redirection of the work because of interrelationships with other projects;

 

4.

Promoting and facilitating technology transfer activities, including disseminating program results through presentations and publications, subject to provisions on maintaining protection of confidential or proprietary information;

 

5.

Serving as scientific/technical liaison between awardees and other program or industry staff;

 

6.

Oversight of recipient progress to help ensure the projects achieve their intended results. This may include collaboration with recipient on shifting work emphasis, within the various projects, if necessary, to achieve project goals. If work scope changes are required, they will be negotiated when the continuation funding is approved;

 

7.

Assisting recipient with coordination between reactor vendors and power companies to ensure vendor engineering and design activities support the ARDP project requirements;

 

8.

Setting project milestones together with recipient for review as part of each continuation application;

 

9.

Coordinating the conduct of independent reviews of the project baseline and review of project status against project milestones in advance of each continuation application; and

 

10.

Review and approval of one stage before work can begin on a subsequent stage.

 

11.

The power to immediately halt an activity, if performance specifications (e.g., construction specifications) are not met or unsafe practices are identified.

 

d. There are limitations on recipient and DOE responsibilities and authorities in the performance of the project activities. Performance of the project activities must be within the scope of the Statement of Objectives, the terms and conditions of the Cooperative Agreement, and the funding and schedule constraints.

 

 

DOE F 4600.2
(03/2017)

All Other Editions Are Obsolete

 

U.S.Department of Energy

 

FEDERAL ASSISTANCE REPORTING CHECKLIST
AND INSTRUCTIONS

 

1. Identification Number: DE-NE0009040	2. Program/Project Title:
3. Recipient: X Energy, LLC 7701 Greenbelt Rd Suite 320 Greenbelt,  MD20770-6517	X-energy and Energy Northwest Deploy First Commercial-Scale Advanced Reactor by [**]
4. Reporting Requirements:	Frequency	Addresses
A. MANAGEMENT REPORTING   þ Research Performance Progress Report (RPPR) (RD & D Projects)   ¨ Progress Report (Non - RD & D Projects)   þ Special Status Report	O F   O	https://fedconnect.net & (A B C E )    https://fedconnect.net & (A B C E )
B. SCIENTIFIC/TECHNICAL REPORTING   (Dissemination of results is required for RD&D projects. Reports & other S&T publications/products must be submitted using the appropriate DOE Announcement Notice(AN) located at: https:www.osti.gov/elink )

Product			Announcement Notice(AN)
þ	Scientific & Technical Reporting Product
	A.	Journal Article-Accepted Manuscript	DOE AN 241.3	O	https://www.osti.gov/elink-2413 https://fedconnect.net
	B.	Scientific/Technical Conference Paper /Presentation or Proceedings	DOE AN 241.3	O	https://www.osti.gov/elink-2413 https://fedconnect.net
	C.	Scientific/Technical Software & Manual	DOE AN 241.4	A	https://www.osti.gov/elink/241-4.jsp https://fedconnect.net
	D.	Other STI (e.g., dissertation/thesis, see instructions)	DOE AN 241.3	O	https://www.osti.gov/elink-2413 https://fedconnect.net
þ	Final Scientific/Technical Report		DOE AN 241.3	F	https://www.osti.gov/elink-2413 https://fedconnect.net

C. FINANCIAL REPORTING   þ SF -425, Federal Financial Report	Q F	https://fedconnect.net & (A B E )
D. CLOSEOUT REPORTING   þ Patent Certification   þ SF -428 & 428B Final Property Report   ¨ Other (see special instructions)	F   F	https://fedconnect.net & (A E )   https://fedconnect.net & (A E )

E. OTHER REPORTING   þ Annual Indirect Cost Proposal   þ Audit of For-Profit Recipients   þ SF -428 Tangible Personal Property Report Forms Family   ¨ Other (see special instructions)

O   O   O

https://fedconnect.net (or Cognizant Federal Agency) & (A E ) https://fedconnect.net & send to CFO at: DOE-Audit-Submission@hq.doe.gov & (A E ) https://fedconnect.net & (A E )

FREQUENCY CODES AND DUE DATES:
A - Within 5 calendar days after events or as specified	F - Final; within 90 calendar days after expiration or termination of award.
Y - Yearly; within 90 days after the end of the reporting period.	Y180 - Yearly; within 180 days after the end of the recipient’s fiscal year.
Q - Quarterly; within 30 days after end of the reporting period.	S - Semiannually; within 30 days after end of reporting period.
O - Other; See special instructions for further details.

 

 

 

 

Federal Assistance Reporting Instructions

 

A.

MANAGEMENT REPORTING

 

For awards involving RD&D a Research Performance Progress Report is required to be submitted. For all other awards a Progress Report is required to be submitted.

 

Either the Research Performance Progress Report (RPPR) or the Progress Report must be checked, but not both.

 

Research Performance Progress Report (RPPR) (RD&D Projects)

 

See the attachment entitled “Research Performance Progress Report” for instructions on what the Recipient is to include in the RPPR.

 

Progress Report (Non-RD&D Projects)

 

The Recipient must provide a concise narrative assessment of the status of work and include the following information and any other information identified under Special Instructions on the Federal Assistance Reporting Checklist:

 

1.

The DOE award and report information:

 

a.

The DOE Award Number (as it appears on the award face page)

 

b.

Recipient Name (as it appears on the award face page)

 

c.

Project Title

 

d.

PD/PI Name, Title and Contact Information (e-mail address and phone number)

 

e.

Name of Submitting Official, Title, and Contact Information (e-mail address and phone number), if other than PD/PI

 

f.

Project Period (Start Date, End Date)

 

g.

Report Submission Date

 

h.

Reporting Period Start and End Date

 

2.

A written comparison of the actual project accomplishments with the project goals and objectives established for the reporting period; if goals and/or objectives for the reporting period were not met, a detailed description of the variance shall be provided.

 

3.

A discussion of what was accomplished under these goals and objectives established for this reporting period, including major activities, significant results, major findings or conclusions, key outcomes or other achievements. This section should not contain any proprietary data or other information not subject to public release. If such information is important to reporting progress, do not include the information, but include a note in the report advising the reader to contact the Principal Investigator or the Project Director for further information.

 

4.

Cost Status. A comparison of the approved budget by budget period and the actual costs incurred during the reporting period shall be provided. If cost sharing is required, the cost breakdown shall show the DOE share, recipient share, and total costs.

 

5.

Schedule Status. List milestones, anticipated completion dates and actual completion dates. If you submitted a project management plan with your application, you must use this plan to report schedule and budget variances. You may use your own project management system to provide this information.

 

 

6.

Describe any changes during the reporting period in project approach and the reasons for these changes. Remember, significant changes to the project objectives and scope require prior approval by the Contracting Officer.

 

7.

Describe any actual or anticipated problems or delays and any actions taken or planned to resolve them.

 

8.

Describe any absence or changes of key personnel or changes in consortium/teaming arrangement during the reporting period.

 

9.

List and describe any product produced or technology transfer activities accomplished during this reporting period, such as:

 

A.

Publications (list journal name, volume, issue); conference papers; or other public releases of results. Attach or send copies of public releases to the DOE Program Manager identified in Block 15 of the Assistance Agreement Cover Page.

 

B.

Web site or other Internet sites (list the URL) that reflect the results of this project.

 

C.

Networks or collaborations fostered.

 

D.

Technologies/Techniques (Identify and Describe).

 

E.

Inventions/Patent Applications (Identify and Describe with date of application)

 

F.

Other products, such as data or databases, physical collections, audio or video, software or NetWare, models, educational aid or curricula, instruments or equipment (Identify and Describe).

 

Special Status Report

 

The recipient must report the following events by e-mail as soon as possible after they occur:

 

1.

Developments that have a significant favorable impact on the project.

 

2.

Problems, delays, or adverse conditions which materially impair the recipient’s ability to meet the objectives of the award or which may require DOE to respond to questions relating to such events from the public. The recipient must report any of the following incidents and include the anticipated impact and remedial action to be taken to correct or resolve the problem/condition:

 

a.

Any single fatality or injuries requiring hospitalization of five or more individuals.

 

b.

Any significant environmental permit violation.

 

c.

Any verbal or written Notice of Violation of any Environmental, Safety, and Health statutes.

 

d.

Any incident which causes a significant process or hazard control system failure.

 

e.

Any event which is anticipated to cause a significant schedule slippage or cost increase.

 

f.

Any damage to Government-owned equipment in excess of $50,000.

 

g.

Any other incident that has the potential for high visibility in the media.

 

 

B.	SCIENTIFIC/TECHNICAL REPORTING

 

The dissemination of scientific and technical information (STI) ensures public access to the results of federally funded research. STI refers to information products in any medium or format used to convey results, findings, or technical innovations from research and development or other scientific and technological work that are prepared with the intention of being preserved and disseminated in the broadest sense applicable (i.e., to the public or, in the case of controlled unclassified information or classified information, disseminated among authorized individuals). Access to and archival of DOE-funded STI are managed by the DOE Office of Scientific and Technical Information (OSTI). For information about OSTI see http://www.osti.gov

 

For more information on STI submittals, see http://www.osti.gov/stip/submittal

 

By properly notifying DOE OSTI about the published results, the information will be made publicly accessible and discoverable through DOE web-based products.

 

NOTE: SCIENTIFIC/TECHNICAL PRODUCTS INTENDED FOR PUBLIC RELEASE MUST NOT CONTAIN PROTECTED PERSONALLY IDENTIFIABLE INFORMATION (PII). PII is defined as any information about an individual which can be used to distinguish or trace an individual’s identity. Some information that is considered to be PII is available in public sources such as telephone books, public websites, university listings, etc. This type of information is considered to be Public PII and includes, for example, first and last name, address, work telephone number, e-mail address, home telephone number, and general educational credentials. In contrast, Protected PII is defined as an individual’s first name or first initial and last name in combination with any one or more of the following types of information: social security number, passport number, credit card numbers, clearances, bank numbers, biometrics, date and place of birth, mother’s maiden name, criminal, medical and financial records, educational transcripts, etc., which could be misused if made publicly available.

 

1.

Scientific and Technical Reporting Products

 

a.

Journal Article-Accepted Manuscript

 

Recipients are encouraged to publish their work in scholarly journals. When/if a recipient has an article accepted for publication in a peer-reviewed journal they are required to announce the publication to OSTI as detailed below. This Reporting Requirement will be denoted with the Frequency “O – Other” on the Checklist.

 

Public access to peer-reviewed scholarly publications can be achieved by following these instructions. If the Recipient has a journal article accepted for publication which contains information/data produced under the award, then the Recipient must submit an AN 241.3 for the author’s full-text version of the accepted manuscript, as described below, at the time the article meets the status of being “accepted” for publication. The Federal Government’s right to use the data produced under a Federal award is established in 2 CFR 200.315(d), U.S. Government’s retained license to published results of federally funded research.

 

Content. The Recipient is to announce to DOE the final peer-reviewed accepted manuscript (AM), i.e., the version of the journal article content that has been peer reviewed and accepted for publication in a journal, by providing a persistent link to the accepted manuscript on the recipient’s publicly accessible institutional repository or submitting the full text (see Electronic Submission Process below). The Recipient should NOT submit the journal’s published version of the article, i.e., the Recipient should NOT submit a copyrighted reprint. The Recipient should not submit the content of peer reviews or a commitment to publish. The Recipient should provide only the accepted manuscript content intended to be the published article.

 

 

DOE will make no additional review of the content of an AM because the AM is a version of the journal article with the content to be published (i.e., publicly released) by the journal publisher. The Recipient is responsible for ensuring the suitability of the content for public release. The terms and conditions of award provide that PII, proprietary, export control or classified information shall be protected. DOE may choose to defer providing public access until an administrative interval period has passed.

 

The Recipient must self-certify at the time of submission to DOE via E-Link that the content is appropriate and that it is not a copyrighted reprint, i.e., the final version of the published article. Recipients are reminded that the article is to include an acknowledgement of Federal support and a disclaimer.

 

Electronic Submission Process. The Journal Article-Accepted Manuscript must be announced via the DOE Energy Link System (E-Link) by submitting a completed DOE Announcement Notice (AN) 241.3 (https://www.osti.gov/elink-2413).

 

Within the AN 241.3, provide relevant journal information (article title, journal name, volume, issue, and any other pertinent publication information). Also provide a persistent link to the repository location of the accepted manuscript. An example of an acceptable persistent link is a URL to the specific location of the Journal Article-Accepted Manuscript hosted on a public, openly accessible university research publications website. If a persistent link is not available or if the website has access restrictions (preventing public access), then the Recipient must upload the full-text of the Accepted Manuscript using the AN 241.3 and E-Link instructions.

 

Full-text of accepted manuscripts must be in Adobe Portable Document Format (PDF) and be one integrated PDF file that contains all text, tables, diagrams, photographs, schematics, graphs, and charts. Please refer to http://www.osti.gov/stip/best-practices-portable-document-format-pdf- creation for PDF document creation.

 

b.

Scientific/Technical Conference Paper/Presentation or Proceedings

 

Recipients are encouraged to announce Scientific and Technical Conference Papers/Presentations if they are the primary means by which certain research results are disseminated or if they contain research results not already announced to DOE by the Recipient in technical reports, accepted journal articles, or other STI. This Reporting Requirement will be denoted with the Frequency “O – Other” on the Checklist. Instructions for how to announce such STI can be found below. In cases where the Recipient is required to create and submit a Conference Proceedings, the Frequency will be “F – Final.”

 

Content. The content should include: (1) Name of conference; (2) Location of conference; (3) Date of conference; and (4) Conference sponsor. Also include an acknowledgement of Federal support and a disclaimer.

 

Electronic Submission Process. Scientific/technical conference papers/presentations or proceedings must be submitted via the DOE Energy Link System (E-Link) with a completed DOE Announcement Notice (AN) 241.3 (https://www.osti.gov/elink-2413).

 

 

DOE will not review conference papers or presentations prior to making publicly available via OSTI since they were already presented in a public setting during a conference. The Recipient is responsible for ensuring the suitability of the content for public release. The terms and conditions of award provide that PII, proprietary, export control or classified information shall be protected. The Recipient must self-certify at the time of submission to DOE via E-Link that the content is appropriate for and has been publicly released.

 

Scientific/technical conference papers or proceedings that are textual documents must be submitted in Adobe Portable Document Format (PDF) and be one integrated PDF file that contains all text, tables, diagrams, photographs, schematics, graphs, and charts. Please refer to http://www.osti.gov/stip/best-practices-portable-document-format-pdf-creation for PDF document creation. Audiovisual formats, such as PowerPoint (PPT) or video presentations, may be submitted as a Microsoft PPT file or audiovisual file by selecting the appropriate format on the AN 241.3 for the file to be uploaded or, in the case of videos posted on a publicly available website, by providing a link to the specific video. Format options and other instructions can be found at http://www.osti.gov/stip/audiovisualsti.

 

c.

Scientific/Technical Software & Manual

 

Content. When a Recipient submits software to OSTI for dissemination, the following must be delivered: source code, the executable object code and the minimum support documentation needed by a competent user to understand and use the software and to be able to modify the software in subsequent development efforts, unless otherwise specified in the award.

 

Submission Process. The software submission must be accompanied by a completed DOE Announcement Notice (AN) 241.4 “Announcement of U.S. Department of Energy Computer Software.” The announcement notice and instructions are available on E-Link at https://www.osti.gov/elink/241-4.jsp. The AN 241.4 may be filled online and submitted electronically, with a printed copy or note accompanying the shipped software package.

 

Software (including user guide or manual) must be submitted on computer disk (CD) shipped via regular mail to:

 

Energy Science and Technology Software Center 

P.O. Box 1020 

Oak Ridge, TN 37831

 

d.

Other STI

 

Recipients are encouraged to announce other forms of STI especially if they are the primary means by which certain research results are disseminated or if they contain research results not already announced to DOE by the Recipient in technical reports, accepted journal articles, or other STI. This Reporting Requirement will be denoted with the Frequency “O – Other” on the Checklist.

 

Other types of STI produced which may be for used for public dissemination of project results include: dissertation/thesis, patent, book, or other similar products. These types of STI may also be announced using DOE AN 241.3 by following instructions on the E-Link website ( https://www.osti.gov/elink-2413).

 

 

2.

Final Scientific/Technical Report

 

For R&D type awards where a Final Scientific/Technical Report is required, recipients are required to create and submit a final technical report. This Reporting Requirement will be denoted with the Frequency “F – Final” on the Federal Assistance Reporting Checklist.

 

The scientific/technical report is intended to increase the diffusion of knowledge gained by DOE-funded research, and all requirements shall be interpreted in that light.

 

Content. Research findings and other significant STI resulting from the DOE-sponsored R&D project shall be included in the final scientific/technical report, subject to the following provisions:

 

1.

The scientific/technical report is to cover the entire project period. For Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) awards, a final scientific/technical report must be submitted after the completion of each phase, e.g., Phase I, Phase II, and sequential Phase II, as described in the Special Instructions.

 

2.

STI that is publicly accessible need not be duplicated in the report if a citation with a link to where the information may be found is included in the report. For example, articles found in PAGES (i.e., DOE’s Public Access Gateway for Energy and Science, http://www.osti.gov/pages/) are accessible to the public.

 

3.

Provide identifying information: the DOE award number; sponsoring program office; name of recipient; project title; name of project director/principal investigator; and consortium/teaming members.

 

4.

Include an acknowledgment of Federal support and a disclaimer, which must appear in the publication of any material as noted in the terms and conditions.

 

5.

Include any limitations on public release of the report, if applicable. If the document being submitted contains patentable material or protected data (i.e., data first produced in the performance of the award that is protected from public release for a period of time by terms of the award agreement, e.g., SBIR protected data), then (1) prominently display on the cover of the report any authorized distribution limitation notices, such as patentable material or protected data (e.g., SBIR protected data) and (2) clearly identify patentable or protected data on each page of the report. Reports delivered without such notices may be deemed to have been furnished with unlimited rights, and the Government assumes no liability for the disclosure, use or reproduction of such reports. Any restrictive markings must also be noted in the distribution limitation section of the Announcement Notice (AN) 241.3 (see Electronic Submission Process, below). No protected PII should be included (see PII definition).

 

6.

Provide an abstract or executive summary, which should be a minimum of one paragraph and written in terms understandable by an educated layperson. (Refer to http://www.osti.gov/stip/standards for ANSI/NISO guidance as needed.) The abstract included in an application may serve as a model for this.

 

7.

Summarize project activities for the entire period of funding, including original hypotheses, approaches used, and findings. Include, if applicable, facts, figures, analyses, and assumptions used during the life of the project to support the results in a manner that conveys to the scientific community the STI created during the project. To minimize duplication, the report may reference STI, including journal articles, that is publicly accessible. See also #2.

 

 

8.

For guidance offered by the National Information Standards Organization on typical attributes and content of a technical report, if needed, refer to ANSI/NISO Z39.18-2005 (R2010), Scientific and Technical Reports – Preparation, Presentation, and Preservation (see http://www.osti.gov/stip/standards).

 

Electronic Submission Process. The final scientific/technical report must be submitted via the DOE Energy Link System (E-Link) with a completed electronic version of DOE Announcement Notice (AN) 241.3, “U.S. Department of Energy (DOE), Announcement of Scientific and Technical Information (STI).” The Recipient can complete, upload, and submit the DOE AN 241.3 online via E-Link ( https://www.osti.gov/elink-2413).

 

The Recipient must mark the appropriate block in the “Intellectual Property/Distribution Limitations” Section of the DOE AN 241.3. Reports that are electronically uploaded must not contain any limited rights data (proprietary data), classified information, protected PII, information subject to export control classification, or other information not subject to release. During the upload process, the Recipient must self-certify that no content of this nature is being submitted. For assistance with reports containing such content, contact the Contracting Officer.

 

Text documents must be submitted in Adobe Portable Document Format (PDF) and be one integrated PDF file that contains all text, tables, diagrams, photographs, schematics, graphs, and charts. Please refer to http://www.osti.gov/stip/best-practices-portable-document-format-pdf-creation for PDF document creation.

 

C.	FINANCIAL REPORTING

 

The Recipient must complete the SF-425 as identified on the Reporting Checklist in accordance with the report instructions. A fillable version of the form is available at https://www.grants.gov/web/grants/forms/post-award- reporting-forms.html.

 

D.	CLOSEOUT REPORTS

 

Final Invention and Patent Report

 

The Recipient must provide a DOE Form 2050.11, “PATENT CERTIFICATION.” This form is available at http://energy.gov/management/office-management/operational-management/financial-assistance/financial- assistance-forms under Reporting Forms.

 

Final Property Report

 

See Instructions under SF-428 Tangible Personal Property Report Forms Family below.

 

E.	OTHER REPORTING

 

Annual Indirect Cost Proposal and Reconciliation

 

Requirement. In accordance with the applicable cost principles, the recipient must submit an annual indirect cost proposal, reconciled to its financial statements, within six months after the close of the recipient’s fiscal year, unless the award is based on a predetermined or fixed indirect rate(s), or a fixed amount for indirect or facilities and administration (F&A) costs. The format and content of the indirect cost proposal should follow the Defense Contract Audit Agency’s (DCAA) ICE Model in order to be considered an adequate proposal.

 

 

DCAA’s ICE Model can be found on the DCAA website at: https://www.dcaa.mil/Checklists-Tools/ICE- Model/.

 

Cognizant Agency. The Recipient must submit its annual indirect cost proposal directly to the cognizant agency for negotiating and approving its indirect costs. If the DOE awarding office is the cognizant agency, the Recipient must submit their annual indirect cost proposal to https://www.fedconnect.net/fedconnect/default.aspx.

 

Audit of For-Profit Recipients

 

As required by 2 CFR parts 910.500 through 910.521, a For-Profit entity which expends $750,000 or more during their fiscal year in DOE awards must have a compliance audit conducted for that year.

 

Submission: The compliance audit report(s) must be submitted to DOE within the earlier of 30 days after receipt of the auditor’s report(s) or nine months after the end of the audit period (Recipient’s fiscal year-end). The compliance audit report must be submitted, along with audited financial statements (if applicable), to the appropriate DOE Contracting Officer at https://www.fedconnect.net/fedconnect/default.aspx as well as to the DOE Office of the Chief Financial Officer (CFO) at DOE-Audit-Submission@hq.doe.gov.

 

SF-428 Tangible Personal Property Report Forms Family

 

Requirement. The SF-428 is a forms family consisting of 5 forms: the SF-428, SF-428-A, SF-428-B, SF-428-C and SF-428S. Fillable versions of the SF-428 forms are temporarily available at https://www.reginfo.gov/public/do/PRAViewIC?ref_nbr=201002-3090-001&icID=192059. The SF-428 is the cover page and the submitter attaches the appropriate form or forms as listed on the SF-428.

 

	•	The SF-428A is the Annual report, due Oct 30th of each calendar year.
	•	The SF-428B is the Final Award Closeout Report, due 90 calendar days after completion or termination of the award.
	•	The SF-428C is the Disposition Report/Request.
	•	The SF-428S is the supplemental form for the SF-428-A, SF-428-B, and SF-428-C.

 

If at any time during the award the Recipient is provided Government-furnished property or acquires property with project funds and the award specifies that the property vests in the Federal Government (i.e. federally owned property), the Recipient must submit an annual inventory of this property to the DOE Administrator using the SF-428 and SF-428-A forms at the address on page 1 of this checklist no later than October 30th of each calendar year, to cover an annual reporting period ending on the preceding September 30th. The SF-428 and SF-428-B reports are required 90 calendar days after completion or termination of award to complete the closeout process.

 

Content of Inventory. As required on the SF-428-A and SF-428-S forms, the inventory must include a description of the property, tag number, acquisition date, and acquisition cost, if purchased with project funds. The location of property should be listed under the Comments section. The report must list all federally owned property, including property located at subcontractor’s facilities or other locations.

 

 

Attachment 1

 

RESEARCH PERFORMANCE PROGRESS REPORT

 

Standard Cover Page Data Elements and Reporting Categories

 

The standard cover page data elements shown below, as well as mandatory and optional components comprise the complete research performance progress report format. Each category in the RPPR is a separate reporting component. Each component is marked to indicate if it is optional or mandatory. Mandatory components must be addressed in each report, optional are at your discretion. For Optional components, if you have nothing significant to report during the reporting period on a question or item, state “Nothing to Report,” if there are reportable items, please submit according to the instructions for each section.

 

1.

COVER PAGE DATA ELEMENTS: Mandatory

 

a.

Federal Agency and Organization Element to Which Report is Submitted

 

b.

Federal Grant or Other Identifying Number Assigned by Agency

 

c.

Project Title

 

d.

PD/PI Name, Title and Contact Information (e-mail address and phone number)

 

e.

Name of Submitting Official, Title, and Contact Information (e-mail address and phone number), if other than PD/PI

 

f.

Submission Date

 

g.

DUNS Number

 

h.

Recipient Organization (Name and Address)

 

i.

Project/Grant Period (Start Date, End Date)

 

j.

Reporting Period End Date

 

k.

Report Term or Frequency (annual, semi-annual, quarterly, final, other)

 

l.

Signature of Submitting Official (electronic signatures (i.e., Adobe Acrobat) are acceptable)

 

2.

ACCOMPLISHMENTS: Mandatory

 

What was done? What was learned?

 

The information provided in this section allows the agency to assess whether satisfactory progress has been made during the reporting period. The PI is reminded that the grantee is required to obtain prior written approval from the Contracting Officer whenever there are significant changes in the project or its direction. Requests for prior written approval must be submitted to the Contracting Officer.

 

a.

What are the major goals and objectives of this project?

 

List the major goals of the project as stated in the approved application or as approved by the agency. Describe the proposed technical approach to obtain those goals. If the application lists milestones/target dates for important activities or phases of the project, identify these dates and show actual completion dates or the percentage of completion. Generally, the goals will not change from one reporting period to the next. However, if the awarding agency approved changes to the goals during the reporting period, list the revised als and objectives. Also explain any significant changes in approach or methods from the agency approved application or plan.

 

b.

What was accomplished under these goals?

 

For this reporting period describe: 1) major activities; 2) specific objectives; 3) significant results or key outcomes, including major findings, developments, or conclusions (both positive and negative); and/or 4) other achievements. Include a discussion of stated goals not met. As the project progresses, the emphasis in reporting in this section should shift from reporting activities to reporting accomplishments.

 

 

c.

What opportunities for training and professional development has the project provided?

 

Describe opportunities for training and professional development provided to anyone who worked on the project or anyone who was involved in the activities supported by the project. “Training” activities are those in which individuals with advanced professional skills and experience assist others in attaining greater proficiency. Training activities may include, for example, courses or one-on-one work with a mentor. “Professional development” activities result in increased knowledge or skill in one’s area of expertise and may include workshops, conferences, seminars, study groups, and individual study. Include participation in conferences, workshops, and seminars not listed under major activities.

 

If the project was not intended to provide training and professional development opportunities or there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

d.

How have the results been disseminated to communities of interest?

 

Describe how the results have been disseminated to communities of interest. Include any outreach activities that have been undertaken to reach members of communities who are not usually aware of these research activities, for the purpose of enhancing public understanding and increasing interest in learning and careers in science, technology, and the humanities.

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

e.

What do you plan to do during the next reporting period to accomplish the goals and objectives?

 

Describe briefly what you plan to do during the next reporting period to accomplish the goals and objectives.

 

If there are no changes to the agency-approved application or plan for this project or if this is the final report, state “Nothing to Report.”

 

3.

PRODUCTS: Optional

 

What has the project produced?

 

Publications are the characteristic product of research. Agencies evaluate what the publications demonstrate about the excellence and significance of the research and the efficacy with which the results are being communicated to colleagues, potential users, and the public, not the number of publications. Many projects (though not all) develop significant products other than publications. Agencies assess and report both publications and other products to Congress, communities of interest, and the public.

 

List any products resulting from the project during the reporting period. Examples of products include: publications, conference papers, and presentations; website(s) or other Internet site(s); technologies or techniques; inventions, patent applications, and/or licenses; and other products, such as data or databases, physical collections, audio or video products, software or NetWare, models, educational aids or curricula, instruments or equipment, research material, interventions (e.g., clinical or educational), new business creation or any other public release of information related to the project.

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

a.

Publications, conference papers, and presentations

 

Report only the major publication(s) resulting from the work under this award. There is no restriction on the number. However, Agencies are interested in only those publications that most reflect the work under this award in the following categories:

 

i.

Journal publications. List peer-reviewed articles or papers appearing in scientific, technical, or professional journals. Include any peer-reviewed publication in the periodically published proceedings of a scientific society, a conference, or the like. A publication in the proceedings of a one-time conference, not part of a series, should be reported under “Books or other non- periodical, one-time publications.”

 

 

Identify for each publication: Author(s); title; journal; volume: year; page numbers; status of publication (published; accepted, awaiting publication; submitted, under review; other); acknowledgement of federal support (yes/no). Also see instructions under B. Scientific/Technical Reporting regarding the submission of accepted manuscripts and other STI as appropriate.

 

ii.

Books or other non-periodical, one-time publications. Report any book, monograph, dissertation, abstract, or the like published as or in a separate publication, rather than a periodical or series. Include any significant publication in the proceedings of a one-time conference or in the report of a one-time study, commission, or the like.

 

Identify for each one-time publication: author(s); title; editor; title of collection, if applicable; bibliographic information; year; type of publication (book, thesis or dissertation, other); status of publication (published; accepted, awaiting publication; submitted, under review; other); acknowledgement of federal support (yes/no).

 

iii.

Other publications, conference papers and presentations. Identify any other publications, conference papers and/or presentations not reported above. Specify the status of the publication as noted above.

 

b.

Website(s) or other Internet site(s)

 

List the URL for any Internet site(s) that disseminates the results of the research activities. A short description of each site should be provided. It is not necessary to include the publications already specified above in this section.

 

c.

Technologies or techniques

 

Identify technologies or techniques that have resulted from the research activities. Describe the technologies or techniques and how they are being shared.

 

d.

Inventions, patent applications, and/or licenses

 

Identify inventions, patent applications with date, and/or licenses that have resulted from the research. Submission of this information as part of an interim or final Research Performance Progress Report is not a substitute for any other invention reporting required under the terms and conditions of an award.

 

e.

Other products

 

Identify any other significant products that were developed under this project. Describe the product and how it is being shared. Examples of other products are: Data or databases; Physical collections; Audio or video products; Software or NetWare; Models; Educational aids or curricula; Instruments or equipment; Research material (e.g., germplasm, cell lines, DNA probes, animal models); Interventions (e.g clinical, educational); new business creation; and Other.

 

 

4.

PARTICIPANTS & OTHER COLLABORATING ORGANIZATIONS: Optional

 

Who has been involved?

 

Agencies need to know who has worked on the project to gauge and report performance in promoting partnerships and collaborations. The following information on participants and other collaborating organizations during this reporting period must be provided:

 

a.

What individuals have worked on the project?

 

Provide the following information for: (1) Project director(s)/Principal investigator(s) (PDs/PIs); and (2) each person who has worked, and was funded by the project, at least one person month per year on the project during the reporting period, regardless of the source of compensation (a person month equals approximately 160 hours of effort). Please note that such reporting does not constitute a formal institutional report of effort on the project, but rather is used by agency program staff to evaluate the progress of the project during a given reporting period.

 

i.

Provide the name and identify the role the person played in this project.

 

Indicate the total number of months (including partial months) (Calendar, Academic, Summer) that the individual worked on this project. Using the project roles identified below, select the most senior role in which the person worked on the project for any significant length of time. For example, if an undergraduate student graduated, entered graduate school, and continued to work on the project, show that person as a graduate student, preferably explaining the change in involvement.

 

ii.

Project Roles:

 

PD/PI 

Co PD/PI 

Faculty 

Community College Faculty

Technical School Faculty 

K-12 Teacher 

Postdoctoral (scholar, fellow or other postdoctoral position)

Other Professional 

Technician 

Staff Scientist (doctoral level)

Statistician 

Graduate Student (research assistant)

Non-Student Research Assistant

Undergraduate Student 

Technical School Student

High School Student

Consultant 

Research Experience for Undergraduates (REU) Participant

Other (specify)

 

iii.

Describe briefly how this person contributed to this project.

 

If information is unchanged from a previous progress report, provide the name only and indicate “no change.”

 

iv.

Identify the person’s state, U.S. territory, and/or country of residence. State whether this person has collaborated internationally.

 

If the participant was U.S.-based, state whether this person collaborated internationally with an individual located in a foreign country, and specify whether the person traveled to the foreign country as part of that collaboration, and, if so, what the duration of stay was. The foreign country(ies) should be identified.

 

 

If the participant was not U.S.-based, state whether this person traveled to the U.S. or another country as part of a collaboration, and, if so, what the duration of stay was. The destination country should be identified.

 

Example:

 

	1.	Name: Mary Smith
	2.	Total Number of Months: 5.5
	3.	Project Role: Graduate Student
	4.	Researcher Identifier: 1234567
	5.	Contribution to Project: Ms. Smith has performed work in the area of combined error-control and constrained coding.
	6.	State, U.S. territory, and/or country of residence: Michigan, U.S.A.
	7.	Collaborated with individual in foreign country: Yes
	8.	Country(ies) of foreign collaborator: China
	9.	Travelled to foreign country: Yes
	10.	If traveled to foreign country(ies), duration of stay: 5 months

 

b.

Has there been a change in the active other support of the PD/PI(s) or senior/key personnel since the last reporting period?

 

Describe active other support for the PD/PI(s) or senior/key personnel whose support has changed and what the change has been (e.g., a previously active grant that has closed, a previously pending grant that is now active). Active other support includes all financial resources, whether Federal, non-Federal, commercial or organizational, available in direct support of an individual’s research endeavors, including, but not limited to, research grants, cooperative agreements, contracts, or organizational awards, (e.g., Federal, State, local or foreign government agencies, public or private foundations, industrial or other commercial organizations). Annotate this information so it is clear what has changed from the previous submission. Other support does not include prizes or gifts.

 

Submission of active other support information is not necessary for pending changes or for changes in the level of effort for active support reported previously. DOE requires prior written approval if a change in active other support significantly impacts the effort on this award.

 

If there is nothing significant to report during this reporting period or no change from the previous reporting period, state “Nothing to Report.”

 

c.

What other organizations have been involved as partners?

 

Describe partner organizations – academic institutions, other nonprofits, industrial or commercial firms, state or local governments, schools or school systems, or other organizations (foreign or domestic) – that have been involved with the project. Partner organizations may provide financial or in-kind support, supply facilities or equipment, collaborate in the research, exchange personnel, or otherwise contribute.

 

Provide the following information for each partnership:

 

1.

Organization Name:

 

2.

Location of Organization: (if foreign location list country)

 

3.

Partner’s contribution to the project: (identify one or more)

 

i.

Financial support;

 

 

ii.

In-kind support (e.g., partner makes software, computers, equipment, etc., available to project staff);

 

iii.

Facilities (e.g., project staff use the partner’s facilities for project activities);

 

iv.

Collaborative research (e.g., partner’s staff work with project staff on the project);

 

v.

Personnel exchanges (e.g., project staff and/or partner’s staff use each other’s facilities, work at each other’s site).

 

vi.

Other

 

4.

More detail on partner and contribution (foreign or domestic).

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

d.

Have other collaborators or contacts been involved?

 

Some significant collaborators or contacts within the recipient’s organization may not be covered by “What people have worked on the project?” Likewise, some significant collaborators or contacts outside the recipient’s organization may not be covered under “What other organizations have been involved as partners?”

 

For example, describe any significant:

 

1.

collaborations with others within the recipient’s organization, especially interdepartmental or interdisciplinary collaborations;

 

2.

collaborations or contact with others outside the organization; and

 

3.

collaborations or contacts with others outside the United States or with an international organization.

 

Identify the state(s), U.S. territory(ies), or country(ies) of collaborations or contacts.

 

It is likely that many recipients will have no other collaborators or contacts to report.

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

5.	IMPACT: Optional

 

What was done? What was learned?

 

Over the years, this base of knowledge, techniques, people, and infrastructure is drawn upon again and again for application to commercial technology and the economy, to health and safety, to cost-efficient environmental protection, to the solution of social problems, to numerous other aspects of the public welfare, and to other fields of endeavor.

 

The taxpaying public and its representatives deserve a periodic assessment to show them how the investments they make benefit the nation. Through this reporting format, and especially this section, recipients provide that assessment and make the case for Federal funding of research and education.

 

Agencies use this information to assess how their research programs: increase the body of knowledge and techniques; enlarge the pool of people trained to develop that knowledge and techniques or put it to use; and improve the physical, institutional, and information resources that enable those people to get their training and perform their functions.

 

 

This component will be used to describe ways in which the work, findings, and specific products of the project have had an impact during this reporting period. Describe distinctive contributions, major accomplishments, innovations, successes, or any change in practice or behavior that has come about as a result of the project relative to: the development of the principal discipline(s) of the project; other disciplines; the development of human resources; teaching and educational experiences; physical, institutional, and information resources that form infrastructure; technology transfer (include transfer of results to entities in government or industry, adoption of new practices, or instances where research has led to the initiation of a startup company); society beyond science and technology; or foreign countries.

 

a.

What was the impact on the development of the principal discipline(s) of the project?

 

Describe how findings, results, and techniques that were developed or extended, or other products from the project made an impact or are likely to make an impact on the base of knowledge, theory, and research and/or pedagogical methods in the principal disciplinary field(s) of the project. Summarize using language that a lay audience can understand (Scientific American style). How the field or discipline is defined is not as important as covering the impact the work has had on knowledge and technique. Make the best distinction possible, for example, by using a “field” or “discipline”, if appropriate, that corresponds with a single academic department (i.e., physics rather than nuclear physics).

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

b.

What was the impact on other disciplines?

 

Describe how the findings, results, or techniques that were developed or improved, or other products from the project made an impact or are likely to make an impact on other disciplines.

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

c.

What was the impact on the development of human resources?

 

Describe how the project made an impact or is likely to make an impact on human resource development in science, engineering, and technology. For example, how has the project: provided opportunities for research and teaching in the relevant fields; improved the performance, skills, or attitudes of members of underrepresented groups that will improve their access to or retention in research, teaching, or other related professions; developed and disseminated new educational materials;provided scholarships; or provided exposure to science and technology for practitioners, teachers, young people, or other members of the public?

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

d.

What was the impact on teaching and educational experiences?

 

Describe how the project made an impact or is likely to make an impact on teaching and educational experiences. For example, has the project: developed and disseminated new educational materials; led to ideas for new approaches to course design or pedagogical methods; or developed online resources that will be useful for teachers and students and other school staff?

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

 

e.

What was the impact on physical, institutional, and information resources that form infrastructure?

 

Describe ways, if any, in which the project made an impact, or is likely to make an impact, on physical, institutional, and information resources that form infrastructure, including: physical resources such as facilities, laboratories, or instruments; institutional resources (such as establishment or sustenance of societies or organizations); or information resources, electronic means for accessing such resources or for scientific communication, or the like.

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

f.

What was the impact on technology transfer?

 

Describe ways in which the project made an impact, or is likely to make an impact, on commercial technology or public use, including: transfer of results to entities in government or industry; instances where the research has led to the initiation of a start-up company; or adoption of new practices.

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

g.

What was the impact on society beyond science and technology?

 

Describe how results from the project made an impact, or are likely to make an impact, beyond the bounds of science, engineering, and the academic world on areas such as: improving public knowledge, attitudes, skills, and abilities; changing behavior, practices, decision making, policies (including regulatory policies), or social actions; or improving social, economic, civic, or environmental conditions.

 

If there is nothing significant to report during this reporting period, state “Nothing to Report.”

 

h.

What percentage of the award’s budget was spent in foreign country(ies)?

 

Describe what percentage of the award’s budget was spent in foreign country(ies). If more than one foreign country is involved, identify the distribution between the foreign countries. U.S.-based recipients should provide the percentage of the budget spent in the foreign country(ies) and/or, if applicable, the percentage of the budget obligated to foreign entities as first-tier subawards.

 

Recipients that are not U.S.-based should provide the percentage of the direct award received, excluding all first-tier subawards to U.S. entities. If applicable, provide separately the percentage of the budget obligated to non-U.S. entities as first-tier subawards.

 

6.	CHANGES/PROBLEMS: Optional

 

The PD/PI is reminded that the grantee is required to obtain prior written approval from the Contracting Officer whenever there are significant changes in the project or its direction. Requests for prior written approval must be submitted to the Contracting Officer. If not previously reported in writing, provide the following additional information, if applicable: Changes in approach and reasons for change; Actual or anticipated problems or delays and actions or plans to resolve them; Changes that have a significant impact on expenditures; Significant changes in use or care of animals, human subjects, and/or biohazards.

 

a.

Changes in approach and reasons for change

 

Describe any changes in approach during the reporting period and reasons for these changes. Remember that significant changes in objectives and scope require prior approval of the Contracting Officer.

 

b.

Actual or anticipated problems or delays and actions or plans to resolve them

 

Describe problems or delays encountered during the reporting period and actions or plans to resolve them.

 

c.

Changes that have a significant impact on expenditures

 

Describe changes during the reporting period that may have a significant impact on expenditures, for example, delays in hiring staff or favorable developments that enable meeting objectives at less cost than anticipated.

 

 

 

d.

Significant changes in use or care of human subjects, vertebrate animals, biohazards, and/or select agents

 

Describe significant deviations, unexpected outcomes, or changes in approved protocols for the use or care of human subjects, vertebrate animals, biohazards and/or select agents during the reporting period. If required, were these changes approved by the applicable institution committee and reported to the agency? Also specify the applicable Institutional Review Board/Institutional Animal Care and Use Committee approval dates.

 

e.

Change of primary performance site location from that originally proposed

 

Identify any change to the primary performance site location identified in the proposal, as originally submitted.

 

7.	SPECIAL REPORTING REQUIREMENTS: Optional

 

Respond to any special reporting requirements specified in the award terms and conditions, as well as any award specific reporting requirements.

 

8.	BUDGETARY INFORMATION: Optional

 

This component will be used to collect budgetary data from the recipient organization. The information will be used in conducting periodic administrative/budgetary reviews. Budgetary data identified and required by the Contracting Officer should be submitted in an Excel spreadsheet format.

 

9.	PROJECT OUTCOMES: Optional

 

What were the outcomes of the award?

 

This information is used at the completion of the award to ascertain the cumulative outcomes or findings of a project. Describe project outcomes specifically for the public to provide insight into the outcomes of Federally- funded research, education, and other activities. Agencies may make this information available to the public in an electronic format.

 

Project Outcomes

 

The recipient is to provide information regarding the cumulative outcomes or findings of the project. For the final RPPR for the project, provide a concise summary of the outcomes or findings of the award (no more than 8,000 characters) that:

 

a.

is written for the general public (non-technical audiences) in clear, concise, and comprehensible language;

 

b.

is suitable for dissemination to the general public, as the information may be available electronically;

 

c.

does not include proprietary, confidential information or trade secrets; and

 

d.

includes up to six images (images are optional).

 

Please note that this reporting of project outcomes does not constitute a formal dissemination of scientific and technical information (STI) but rather is used by agency program staff to publicize project results, outcomes or findings.

 

To ensure the public access to the results of federally funded research notify DOE Office of Scientific and Technical Information about the published results so the information will be made publicly accessible and discoverable through DOE web-based products. Access to and archival of DOE-funded STI are managed by the (OSTI). For information about OSTI see http://www.osti.gov.

 

For more information on STI submittals, see http://www.osti.gov/stip/submittal.

 

  

Appendix for RPPR

 

DEMOGRAPHIC INFORMATION FOR SIGNIFICANT CONTRIBUTORS

 

Agencies may require that recipients provide demographic data about significant contributors for a variety of purposes, including the following:

 

·

to gauge whether our programs and other opportunities are fairly reaching and benefiting everyone regardless of demographic category;

 

·

to ensure that those in under-represented groups have the same knowledge of and access to programs, meetings, vacancies, and other research and educational opportunities as everyone else;

 

·

to gauge and report performance in promoting partnerships and collaborations;

 

·

to assess involvement of international investigators or students in work we support;

 

·

to track the evolution of changing science, technology, engineering and mathematics (STEM) fields at different points in the pipeline (e.g., medicine and law demographics have recently changed dramatically);

 

·

to raise investigator and agency staff awareness of the involvement of under-represented groups in research;

 

·

to encourage the development of creative approaches for tapping into the full spectrum of talent of the STEM workforce;

 

·

to respond to external requests for data of this nature from a variety of sources, including the National Academies, Congress, etc.; and

 

·

to respond to legislatively-required analysis of workforce dynamics. Legislation requires at least one agency to routinely estimate scientific workforce needs. This analysis is accomplished through reviewing demographic data submitted for the existing workforce.

 

Demographic data (i.e., gender, ethnicity, race, and disability status) should be provided directly by significant contributors, with the understanding that submission of such data is voluntary. There are no adverse consequences if the data are not provided. Confidentiality of demographic data will be in accordance with agency’s policy and practices for complying with the requirements of the Privacy Act.

 

Gender:

Male Female Do not wish to provide

  

Ethnicity:		Hispanic or Latina/o
		Not-Hispanic or not-Latina/o
		Do not wish to provide

  

Race (select one or more):

American Indian or Alaska Native Asian Black or African American Native Hawaiian or other Pacific Islander White Do not wish to provide

 

Disability Status:

Yes (check yes if any of the following apply to you)

 

 

·

Deaf or serious difficulty hearing

 

·

Blind or serious difficulty seeing even when wearing glasses

 

·

Blind or serious difficulty seeing even when wearing glasses

 

·

Other serious disability related to a physical, mental, or emotional condition

 

No Do not wish to provide

  

This measure is designed as a binary measure; it encompasses all self-reported disabilities. Please do not use it to report the number of individuals who have different types of disabilities (e.g., hearing impairments).

 

Note: This construct is not designed to be used at an individual-level (i.e., it should not be used for determining accommodation needs or disability status for particular individuals associated with the project).

 

  

U.S.Department of Energy

Federal Assistance Budget Information

 

1. Award Number: DE-NE0009040	2. Awardee Name and Address: X Energy, LLC 7701 Greenbelt Rd Suite 320 Greenbelt, MD20770-6517
3. Mod Number: 000
4. Project Title: X-energy and Energy Northwest Deploy First Commercial-Scale Advanced Reactor by [**]	5. Project Period: [**]

 

SECTION A - BUDGET SUMMARY

 

Budget Period	Start Date	End Date	Federal	Non-Federal	Total Approved Budget	Total Obligated Federal Funds
1	[**]	[**]	[**]	[**]	[**]	[**]
2	[**]	[**]	[**]	[**]	[**]	[**]
3	[**]	[**]	[**]	[**]	[**]	[**]
4	[**]	[**]	[**]	[**]	[**]	[**]
5	[**]	[**]	[**]	[**]	[**]	[**]
6	[**]	[**]	[**]	[**]	[**]	[**]
7	[**]	[**]	[**]	[**]	[**]	[**]
TOTALS			[**]	[**]	[**]	[**]

 

SECTION B - BUDGET CATEGORIES

 

Object Class Categories	Period 1	Period 2	Period 3	Period 4
Personnel	[**]	[**]	[**]	[**]
Fringe Benefits	[**]	[**]	[**]	[**]
Travel	[**]	[**]	[**]	[**]
Equipment	[**]	[**]	[**]	[**]
Indirect Costs	[**]	[**]	[**]	[**]
Teammate Labor	[**]	[**]	[**]	[**]
Reserves & Contingencies	[**]	[**]	[**]	[**]
Total	[**]	[**]	[**]	[**]

 

 

Object Class Categories	Period 5	Period 6	Period 7	Total
Personnel	[**]	[**]	[**]	[**]
Fringe Benefits	[**]	[**]	[**]	[**]
Travel	[**]	[**]	[**]	[**]
Equipment	[**]	[**]	[**]	[**]
Indirect Costs	[**]	[**]	[**]	[**]
Teammate Labor	[**]	[**]	[**]	[**]
Reserves & Contingencies	[**]	[**]	[**]	[**]
Total	[**]	[**]	[**]	[**]

 

SECTION C - FFRDC FUNDING

 

Share	Period 1	Period 2	Period 3	Period 4
DOE Share	[**]	[**]	[**]	[**]
Awardee Cost Share	[**]	[**]	[**]	[**]
FFRDC	[**]	[**]	[**]	[**]
Total	[**]	[**]	[**]	[**]

 

Share	Period 5	Period 6	Period 7	Total
DOE Share	[**]	[**]	[**]	[**]
Awardee Cost Share	[**]	[**]	[**]	[**]
FFRDC	[**]	[**]	[**]	[**]
Total	[**]	[**]	[**]	[**]

 

Note 1: All estimated future budget allocations are subject to availability of funds.

 

Note 2: FFRDC funding will be provided directly to the lab and will not be available to Awardee.

 

 

DE-NE0009040

 

Attachment B5 – Project Milestones for DE-NE0009040 X-energy and Energy
Northwest Deploy First Commercial-Scale Advanced Reactor by [**]

 

Introduction and Background:

 

As a part of its mission, the United States (U.S.) Department of Energy (DOE), Office of Nuclear Energy (NE) has a long and successful history of working with the domestic nuclear industry, national laboratories, and academia to support the development of advanced reactor designs and capabilities over a continuum of technology maturity levels. DOE currently supports research and development (R&D) activities for a variety of advanced reactor technologies that are expected to improve on the safety, security, economics, and/or environmental impacts of current nuclear power plant designs. DOE undertakes these activities in support of the Administration’s objectives to maintain the Nation’s technological leadership position in the global nuclear industry and ensure national energy security. DOE recognizes that work remains to ensure continued U.S. leadership in the research, design, and development of advanced reactors and to ensure the successful deployment of these reactors in the U.S. and international marketplaces. As part of the FY2020 Further Consolidation Appropriations Act, (H.R. 1865), Congress has provided funding for NE to address advanced reactor development at various stages of the technology maturity continuum.

 

The primary objective of the new Advanced Reactor Demonstration Program (ARDP) program is to focus DOE and non-federal resources on actual construction and initial operation of real demonstration reactors in the U.S. that are safe and affordable to both build and operate in the near and mid-term.

 

The ARDP is intended to facilitate the development of U.S. private industry advanced nuclear reactor demonstrations. It will provide funding for advanced reactors that are reliable, cost effective, licensable, and commercially viable. These designs are expected to enable a market environment in which commercial reactor services are available that are safe and affordable to both construct and operate when compared to competing, alternative sources of energy in the near- and mid-term. These designs are expected to provide significant improvements in safety, security, economics, and environmental impacts over current nuclear power plant designs.

 

To be successful, the advanced reactor must be designed, sited, licensed by the U.S. Nuclear Regulatory Commission (NRC), constructed and operational within 5 – 7 years from the date of award of the cooperative agreement.

 

The recipient of this Award, X-Energy, LLC (X-Energy) is expected to conduct engineering, analysis, and testing activities to develop, certify, and demonstrate the specified advanced reactor design in accordance with NRC regulations. Specifically, X-Energy is expected to execute the following activities:

 

1.

Perform the necessary engineering, analysis, and validation to bring the advanced reactor design to a deployment level of technological readiness, including procuring all necessary licensing and approvals to perform demonstration of the advanced reactor design.

 

2.

Perform first-of-a-kind engineering and construction, including components, reactor facility, and fuel production facility systems to demonstrate a deployment of the advanced reactor design.

 

3.

Commissioning and operation of a first-of-a-kind advanced reactor to generate commercial scale power.

  

 

DE-NE0009040

 

Project Scope:

 

X-Energy’s high-level Work Breakdown Structure (WBS) that defines the steps for engineering, analysis, validation, construction, and demonstration from the original submission are produced below.

 

1	2	3	4	5	6	7	8	9	Description
ARDP									ARDP Proposed Four Pack
	ARDP.1								Program Controls
		ARDP.1.1							Program Management
		ARDP 1.2							Schedule Management
		ARDP.1.3							Quality Assurance and Audits
		ARDP.1.4							Risk Management
		ARDP.1.5							Program Cost Controls
		ARDP.1.6							Resource Management
		ARDP.1.7							Configuration Control
		ARDP.1.8							Document Control (Team Center)
		ARDP.1.9							Contracts Management
		ARDP.1.10							Legal
		ARDP.1.11							Procurement
		ARDP.1.12							Reporting
	ARDP.2								Design
		ARDP.2.1							Preliminary Design
			ARDP.2.1.1						Preliminary-Plant Design and Development
			ARDP.2.1.2						Preliminary-Nuclear Island Design and Development
			ARDP.2.1.3						Preliminary-conventional Island Design and Development
		ARDP.2.2							Final Design
			ARDP.2.2.1						Final-Plant Design and Development
			ARDP.2.2.2						Final-Nuclear Island Design and Development
			ARDP.2.2.3						Final-conventional Island Design and Development
	ARDP.3								Analysis
		ARDP.3.1							Analysis Management
			ARDP.3.1.1						Software Management
			ARDP.3.1.2						Software Development
			ARDP.3.1.3						Software V&V (BN)
			ARDP.3.1.4						Software Procurement
			ARDP.3.1.5						Software Maintenance
		ARDP.3.2							Preliminary Design Analysis Work
			ARDP.3.2.1						Systems Analysis

 

 

DE-NE0009040

 

			ARDP.3.2.2		Neutronics
			ARDP.3.2.3		CFD
			ARDP.3.2.4		Structural
		ARDP.3.2.5		PRA
		ARDP.3.2.6		Source Term
		ARDP.3.2.7		Shielding
		ARDP.3.2.8		Other Analyses
	ARDP.3.3			Final Design Analysis Work
		ARDP.3.3.1		Systems Analysis
		ARDP.3.3.2		Neutronics
		ARDP.3.3.3		CFD
		ARDP.3.3.4		Structural
		ARDP.3.3.5		PRA
		ARDP.3.3.6		Source Term
		ARDP.3.3.7		Shielding
		ARDP.3.3.8		Other Analyses
ARDP.4				Licensing
	ARDP.4.1			Pre-Application Engagement
		ARDP.4.1.1		Safety Classification and Construction Codes for the ARDP-100 Pressure Vessel
		ARDP.4.1.2		ARDP-100 Fuel Qualification
		ARDP.4.1.3		Mechanistic Source Term
		ARDP.4.1.4		Safety Analysis Codes and V&V
	ARDP.4.2			Development of PSAR
	ARDP.4.3			Support of Site License
	ARDP.4.4			Development of FSAR
ARDP.5				Training Simulator and Operator Training
	ARDP.5.1			Phase 3: "Engineering "Simulator for control system Training/HFE
		ARDP.5.1.1		Formalize the OTS Development Process
		ARDP.5.1.2		Special Component/subsystem Development
		ARDP.5.1.3		Nuclear Island
		ARDP.5.1.4		Conventional Island
		ARDP.5.1.5		3D Development
	ARDP.5.2			Phase 4: Operator Training Simulator
		ARDP.5.2.1		Process model Update
		ARDP.5.2.2		Special model Verification and Validation
		ARDP.5.2.3		Inclusion of final data for Process Models
		ARDP.5.2.4		Interfacing to Plant Controls
		ARDP.5.2.5		Interfacing to Nuclear Island Investment Protection

 

 

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			ARDP.5.2.6	Interfacing to Conventional island Investment Protection
			ARDP.5.2.7	Interfacing to Reactor Protection system
			ARDP.5.2.8	Human Factors Engineering
			ARDP.5.2.9	Update HMI/Sequencing
			ARDP.5.2.10	Operational Procedure Development
			ARDP.5.2.11	Simulator Ready for Training
		ARDP.5.3		Phase 5: Developing Training Curriculum
			ARDP.5.3.1	Simulator Scenarios
			ARDP.5.3.2	Training Manuals
			ARDP.5.3.3	NRC qualification of Curriculum
		ARDP.5.4		Phase 6: Operator Training
			ARDP.5.4.1	Start Simulator Training
			ARDP.5.4.2	Operator Training
			ARDP.5.4.3	NRC Qualification of Operators
			ARDP.5.4.4	Trained Operators
ARDP.6				Test Programs
		ARDP.6.1		Graphite irradiation
			ARDP.6.1.1	Material and Specimen Machining
			ARDP.6.1.2	Pre-Irradiation Examination
			ARDP.6.1.3	Rabbit Design/Construction
			ARDP.6.1.4	Size Effect Study
			ARDP.6.1.5	Irradiation
			ARDP.6.1.6	Post irradiation Examination
			ARDP.6.1.7	Reporting
		ARDP.6.2		Helium Test Facility
			ARDP.6.2.1	HTF Test Planning
			ARDP.6.2.2	HTF Design
			ARDP.6.2.3	HTF Procurement
			ARDP.6.2.4	HTF Construction
			ARDP.6.2.5	HTF Testing
			ARDP.6.2.6	HTF Maintenance and Decommissioning
ARDP.7				Supply Chain/Long lead Procurement
		ARDP.7.1		Reactor pressure Vessel
		ARDP.7.2		Steam Generator
		ARDP.7.3		Fuel Handling System
		ARDP.7.4		Helium Circulator

 

 

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	ARDP.7.5		Turbine Generators
ARDP.8			Fuel
	ARDP.8.1		Program Management
		ARDP.8.1.1	Project Controls
		ARDP.8.1.2	CM/DM
	ARDP.8.2		TRISO Fuel Element Fabrication
		ARDP.8.2.1	Kernel
		ARDP.8.2.2	TRISO
		ARDP.8.2.3	Matrix Production
		ARDP.8.2.4	Overcasting
		ARDP.8.2.5	Pebble Pressing
		ARDP.8.2.6	Carbonization
		ARDP.8.2.7	Heat Treatment
		ARDP.8.2.8	Machining
		ARDP.8.2.9	QC Inspection
		ARDP.8.2.10	Fuel Qualification Testing
		ARDP.8.2.11	Initial Fuel Core Load
	ARDP.8.3		Design - Fuel Fabrication Facility
		ARDP.8.3.1	Conceptual
		ARDP.8.3.2	Basic
		ARDP.8.3.3	Detailed
	ARDP.8.4		Licensing - Fuel Fabrication Facility
		ARDP.8.4.1	Safety Program Description
		ARDP.8.4.2	Environmental Report
		ARDP.8.4.3	Security Plan
		ARDP.8.4.4	Emergency Plan
		ARDP.8.4.5	NRC Engagement
	ARDP.8.5		Construction - Fuel Fabrication Facility
		ARDP.8.5.1	Site work
		ARDP.8.5.2	Structure
		ARDP.8.5.3	Fuel Fabrication line Fit-up
		ARDP.8.5.4	Fuel Fabrication Commissioning
		ARDP.8.5.5	NRC Engagement
ARDP.9			Site Permitting & Licensing
ARDP.10			Site Specific Design
ARDP.11			Construction
	ARDP.11.1		Reactor 1

 

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		ARDP.11.1.1	Nuclear Island
		ARDP.11.1.2	Conventional Island
	ARDP.11.2		Reactor 2
		ARDP.11.2.1	Nuclear Island
		ARDP.11.2.2	Conventional Island
	ARDP.11.3		Reactor 3
		ARDP.11.3.1	Nuclear Island
		ARDP.11.3.2	Conventional Island
	ARDP.11.4		Reactor 4
		ARDP.11.4.1	Nuclear Island
		ARDP.11.4.2	Conventional Island
	ARDP.11.5		Site Construction
		ARDP.11.5.1	Grading and Drainage
		ARDP.11.5.2	Site Utilities
		ARDP.11.5.3	Site perimeter
		ARDP.11.5.4	Security Buildings
		ARDP.11.5.5	Administrative Building
		ARDP.11.5.6	Transmission Switch Yard
		ARDP.11.5.7	Spent Fuel Storage – ISFSI
		ARDP.11.5.8	Backup Generators
		ARDP.11.5.9	Distributed Control System
		ARDP.11.5.10	Plant Electrical System
		ARDP.11.5.11	Plant Water Treatment and Storage System
		ARDP.11.5.12	Maintenance and Storage Building
		ARDP.11.5.13	Warehouse
		ARDP.11.5.14	Electrical Control Building
		ARDP.11.5.15	Fire Pump house and water storage
		ARDP.11.5.16	Helium Storage Building
		ARDP.11.5.17
		ARDP.11.5.18	Plant logistics support system
ARDP.12			Commissioning
	ARDP.12.1		Non-Nuclear Island commissioning
		ARDP.12.1.1	Establish Temporary site buildings
		ARDP.12.1.2	Site Prep to Rough Grade & Storm Water Management
		ARDP.12.1.3	Establish temporary site buildings
		ARDP.12.1.4	Establish temporary roads and laydown areas

 

 

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		ARDP.12.1.5	Final Permit Reviews
	ARDP.12.2		Nuclear Island commissioning
		ARDP.12.2.1	Reactor 1
		ARDP.12.2.2	Reactor 2
		ARDP.12.2.3	Reactor 3
		ARDP.12.2.4	Reactor 4
ARDP.13			Commercial Operations
ARDP.14			Decommissioning
ARDP.15			Financial Costs
	ARDP.15.1		EPC Contractor Bonds and insurance
	ARDP.15.2		EPC Contractor Fees
	ARDP.15.3		Sales Tax
	ARDP.15.4		Estimate Uncertainty
	ARDP.15.5		Management Reserve
	ARDP.15.6		DOE Held Contingency
	ARDP.15.7		Schedule Reserve
	ARDP.15.8		Schedule DOE held Contingency
	ARDP.15.9		Owner Provided insurances
	ARDP.15.10		Escalation Costs
	ARDP.15.11		X-Energy G&A
ARDP.16			Field indirect costs
	ARDP.16.1		EPC General Conditions Costs
	ARDP.16.2		Owner Project Staff
	ARDP.16.3		ENW Staffing

Below is a brief description of each WBS and sub-WBS that is contained above:

 

1.0

Program Controls (applies to both the Xe-100 and our TRISO-X Fuel Facility)

 

1.1 Program Management – Oversight of the overall Advanced Reactor Demonstration Program.

 

1.2 Schedule Management - Development and maintenance of the complete project schedule for the FOAK reactor and for our TRISO-X Fuel Facility. This schedule will include the development and design costs for the FOAK reactor that will not be present for the 2nd, 3rd, or 4th unit in the plant.

 

1.3 QA and Audits - The project will be controlled to NQA-1 including the design, procurement, and construction. QA will provide audits of the entire process including all phases of the project.

  

 

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1.4 Risk Management (RM) - Development and maintenance of the RM program including development of the Risk Matrix, the RMP, and the Risk Analysis Report. This includes the efforts of the Risk Management Team and the periodic maintenance of the risk program during and throughout the entire project.

  

1.5 Cost Controls - Implementation and maintenance of an EVMS based PM control system for the project. This includes the Project Controls Manager, Control Account Managers, and Cost Analysts

 

1.6 Data Management - Control and storage of all project-related documents, design data and revisions including non-NQA-1 documentation.

 

1.7 Configuration Control - A SE process for establishing and maintaining consistency of the plant performance, functional, and physical attributes through requirements, design, and operational information throughout the plant lifecycle. Control of Documents required for design and construction especially for NQA-1 documentation. Includes design drawings, shop drawings, construction testing results, NCRs and DCNs, turnover packages and Objective Records of Quality.

 

1.8 Document Control - Control of all project documentation including NQA-1 Documentation for the project including design documents analysis reports, specifications, and all plant related data such as CAD file revisions for each phase of the project and all safety and licensing reports.

 

1.9 Contracts Management - Management and control of all contract documentation including design contract, EPC contract, any subcontracts, purchase orders, and change orders.

 

1.10 Legal - Maintenance and control of Legal documentation for the project including records of contract negotiations, issues with DOE, owner contracts with legal interface, and claims on the project.

 

1.11 Procurement - Control of all procurement documents including notice to bid, requests for proposals, received proposals, records of negotiations, draft and final procurement documents including contracts and purchase orders of all procurement actions and documents.

 

1.12 Reporting - Preparation and control of all reporting including daily reports, weekly reports, monthly reports, application for payment, notices to the owner, owner records of general operation.

 

2.0

Design

 

2.1 Preliminary (Basic) Design - Design development including all drawings and specifications for the project including architectural, civil, nuclear, and trade engineering efforts. This includes internal review meetings and independent design reviews This leads directly to the final design at the 60% level and following the 60% design review.

 

2.2 Final Design - All the design effort to complete the design to shovel ready state. This includes all final fabrication drawings and specifications, construction drawings and construction plans, final plant performance specifications, plant manuals such as operational, training and maintenance manuals. Final fabrication and construction schedules and level 1 cost estimates to complete the project.

 

 

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3.0 Analysis

 

3.1 Analysis Management - All analysis that support the Design. Includes seismic analysis, neutronics analysis, thermal analysis, transient analysis, Probabilistic Risk Analysis (PRA), Safety Analysis, software development, software Verification and Validation (V&V) for supporting of all NQA-1 safety analysis.

 

3.2 Preliminary Design Analysis Work - All analysis efforts that support the Design Effort. Includes seismic analysis, neutronics analysis, thermal analysis, transient analysis, PRA, safety analysis, software development, software V&V for Preliminary Design Effort.

 

3.3 Final Design Analysis Work - All analysis efforts that support the Design Effort. Includes seismic analysis, neutronics, thermal analysis, transient analysis, PRA, safety analysis, software development, software V&V for Final Design.

 

4.0 Licensing

 

4.1 Pre-Application / CP Application Development - NRC engagements and licensing topical reports on critical HTGR licensing issues to be re-solved early in the § Part 50 licensing approach. Includes both XEP engineering/management cost and NRC review fees. This phase also includes development of the CP application (Preliminary Safety Analysis Report (PSAR) and Environmental Report).

 

4.2 NRC CP Review Support - NRC environmental, safety, and anti-trust review for the CP application, including NRC fees and XEP support during the review. Followed by NRC construction oversight.

 

4.3 Op. License Development - Development of the FSAR, updates to the Environmental Report, and development/implementation of site operating programs supporting the Class 103 OL application.

 

4.4 NRC OL Review Support - NRC review of updates to the environmental, safety, security, safeguards, and financial review for the OL application, including NRC fees and program inspection, and XEP support costs

 

4.5 Other Licenses - Development and NRC review of Part 30, 40, 70, and 72 licenses for source/byproduct material, fresh fuel receipt/storage, and the Independent Spent Fuel Storage Installation.

 

5.0 Training Simulator and Operator Training

 

5.1 Engineering Simulator - Modeling of plant performance including the reactor, SG, startup shutdown system and CI (steam turbine generator), and associated control systems. The engineering simulator provides the ability to predict final plant performance, transient response during all design basis events.

 

 

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5.2 Operator Training Simulator - A Realtime plant simulator that is used to develop the training simulator platform. This includes development of the physical simulator including software development and interphase with the actual plant control platform. Includes procurement of the simulator and erection at the project site, startup, and V&V and NRC approval of the simulator prior to operator training.

 

5.3 Training Curriculum - Development of the training scenarios for training or plant operators. This also includes NRC approval and qualification of the training program and manuals.

 

5.4 Operator Training - All operator training on the simulator including training on operations procedures developed for the reactor, accident scenarios, and all events noted in the FSAR. Includes operator certification by the NRC.

 

6.0 Test Programs

 

6.1 Graphite Irradiation - In-reactor irradiation of the graphite material to assure that irradiation material data meets the assumptions used in the design analyses. This includes post irradiation examination of the irradiated material.

 

6.2 Helium Test Facility (HTF) - Develop, design, and construct the HTF to test helium circulators, reactivity control systems (control rods and shutdown rods), FHS, and other helium components. Includes the Design, Procurement, Construction, and Testing of the required components. Documentation of the test results and analyses is also included in the scope. The HTF will also be used to qualify systems that operate in a high temperature helium environment.

 

7.0 Supply Chain/Long lead Procurement

 

7.1 Reactor Pres. Vessel - Final design, procurement, fabrication, shipping, QA, and receipt inspection of the RPV.

 

7.2 SG - Design, procurement, fabrication, shipping, QA, and receipt inspection of the SG.

 

7.3  Fuel Handling System - Design, procurement, fabrication, shipping, QA, and receipt inspection of the FHS.

 

7.4 Helium Circulator - Design, procurement, fabrication, shipping, QA, and receipt inspection of the Helium Circulators.

 

7.5 Graphite Material - Procurement of the reactor structural graphite material.

 

8.0 Fuel

 

8.1 Program Management - Program management related to fuel development, procurement, design, fabrication, shipping, and certification for use in the reactor plant.

 

8.2 TRISO Fuel Element Fabrication - Contains all costs associated with the fabrication, QA, shipping, and receipt inspection of the TRISO fuel. Includes the uranium kernel, TRISO coatings, matrix production, overcasting, pebble pressing, carbonization, heat treatment, machining, and QC inspection.

 

 

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8.3 Design - All costs associated with the Commercial Fuel Facility Development including Preliminary and Final Design efforts.

 

8.4 Licensing - All licensing efforts associated with the Fuel Development Process including safety, security, emergency planning, and NRC engagement including XEP support costs and NRC fees.

 

8.5 Construction – Construction of the Fuel Fabrication Facility.

 

9.0 Site Permitting & Licensing

 

Permitting & Licensing All non-NRC-related site permits, approvals, and licenses required to support construction and Xe-100 Plant operation. Includes federal, state, and local activities and XEP support costs.

 

10.0 Site Specific Design

 

All other design activities for nuclear plant support systems that deviate from the generic Xe- 100 design and are specific to the nuclear plant construction site, such as the turbine/generator condenser cooling system.

 

11.0 Construction

 

11.1 Site preparation and Development - All site development costs including perimeter, controls, site grading and paving, excavation, storm water management and controls, roads and site development and improvements, temporary facilities and offices, and final permitting and review costs.

 

11.2 Nuclear Is-land (NI) - All scope related to the NI. This includes the reactor system, SG, reactor cavity cooling system, helium circulators, feedwater pumps, FHS, all NI auxiliary systems, reactor building, NI Auxiliary building, high energy spent fuel storage, connecting tunnel, ISFI pads, electrical building, operator control room, radwaste building & intermediate spent fuel storage facility. Includes building construction, setting & final assembly of all NI equipment, piping wiring, HVAC, and controls.

 

11.3 Conventional Island (CI) - All scope outside of the NI including the steam turbine generator, CI buildings, transformers and foundations, electrical I&C, and all balance of plant structures and systems & admin/support.

 

 

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12.0 Commissioning

 

12.1 Non-Nuclear Commissioning - All testing and startup activities on the CI including flush & hydro, systems integrated testing control and instrumentation tests and all CI auxiliary systems. Common plant infrastructure (operator control room, fuel storage) is commissioned to support Unit 1 startup. Security systems are progressively commissioned for each unit, then expanded plant-wide to facilitate operations during construction.

 

12.2 NI Commissioning - All testing and startup activities on the NI. NI commissioning is segmented into 4 stages: Stage 1 included testing of all systems without fuel in the reactor. This includes helium circulator tests, FHS, Reactor Cavity Cooling System, SG hydro tests, feed pump tests, startup shutdown system and all NI auxiliary systems (helium purification system, helium supply system etc.) Stage 2: Cold Critical testing, Stage 3 Hot Critical Testing, Stage 4 Power Operations testing

 

12.3 Cold Critical testing - During cold critical testing fuel is loaded into the reactor for the first time. Cold critical tests are performed to establish the reactor reactivity coefficients at cold conditions. During cold commissioning there is no flow through the reactor.

 

12.4 Hot critical testing - During hot critical testing, the temperature of the reactor is increased to establish the reactor reactivity coefficients at conditions. These tests confirm the negative temperature coefficient of the reactor. During hot commissioning, the circulators are started to confirm the pressure drop over the core and to test the outlet plenum temperature sensors. Tests are essentially iso thermal tests and no power is generated in hot or cold commissioning.

 

12.5 Power Operation Testing - During power ops testing the reactor is brought up to power for the first time. The reactor, SG, startup-shutdown system, and the turbine generator are tested at various power levels. Power Operation Testing is concluded once sustained full power has been achieved.

 

13.0 Commercial Operations

 

Reserved

 

14.0 Decommissioning

 

Reserved

 

15.0 Financial Costs

 

Category of scope/cost associated with escalation, contingency, schedule reserve, estimate uncertainties and gross receipts or sales tax.

 

16.0 Field Indirect Costs

 

Category of scope/cost associated with construction management, QA Staff, owner project staff, and X-energy project staff during site construction.

 

The ultimate goal of the project is to successfully complete the deployment and demonstration of the advanced reactor design to make this technology available to customers who need clean affordable energy generation capability. The milestone list below is detailed for Budget Period 1. As part of the continuation application process, a new detailed milestone sheet will be supplied by X-Energy each budget period.

 

 

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Deliverable/Milestone Schedule

 

#	WBS	Milestone Title and Description	Planned Completion	Deliverable	Milestone Description	Responsible
		BUDGET PERIOD 1
1	[**]	[**]	[**]	[**]	[**]	[**]
2	[**]	[**]	[**]	[**]	[**]	[**]
3	[**]	[**]	[**]	[**]	[**]	[**]
4	[**]	[**]	[**]	[**]	[**]	[**]
5	[**]	[**]	[**]	[**]	[**]	[**]
6	[**]	[**]	[**]	[**]	[**]	[**]
7	[**]	[**]	[**]	[**]	[**]	[**]
8	[**]	[**]	[**]	[**]	[**]	[**]
9	[**]	[**]	[**]	[**]	[**]	[**]
10	[**]	[**]	[**]	[**]	[**]	[**]
11	[**]	[**]	[**]	[**]	[**]	[**]
12	[**]	[**]	[**]	[**]	[**]	[**]

 

 

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#	WBS	Milestone Title and Description	Planned Completion	Deliverable	Milestone Description	Responsible
13	[**]	[**]	[**]	[**]	[**]	[**]
14	[**]	[**]	[**]	[**]	[**]	[**]
15	[**]	[**]	[**]	[**]	[**]	[**]
16	[**]	[**]	[**]	[**]	[**]	[**]
17	[**]	[**]	[**]	[**]	[**]	[**]
18	[**]	[**]	[**]	[**]	[**]	[**]
19	[**]	[**]	[**]	[**]	[**]	[**]
20	[**]	[**]	[**]	[**]	[**]	[**]
21	[**]	[**]	[**]	[**]	[**]	[**]
22	[**]	[**]	[**]	[**]	[**]	[**]
23	[**]	[**]	[**]	[**]	[**]	[**]
24	[**]	[**]	[**]	[**]	[**]	[**]

 

 

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#	WBS	Milestone Title and Description	Planned Completion	Deliverable	Milestone Description	Responsible
25	[**]	[**]	[**]	[**]	[**]	[**]
26	[**]	[**]	[**]	[**]	[**]	[**]
27	[**]	[**]	[**]	[**]	[**]	[**]

 

  

X Energy, LLC 

Award Number: DE-NE0009040

 

Point of Contact Sheet

 

DOE CONTACTS	RECIPIENT CONTACTS
Contract Specialist [**] Telephone Number: [**] Email: [**]	Business Officer [**] Telephone Number: [**] Email: [**]
DOE Project Manager/Initiator	Principal Investigator (PI)
[**]	[**]
Telephone Number: [**]	Telephone Number: [**]
Email: [**]	Email: [**]
HQ Program Manager	Co-Principal Investigator
[**]	[**]
Telephone Number: [**]	Telephone Number: [**]
Email: [**]	Email: [**]
Technical Project Officer	Financial Report POC
[**]	[**]
Telephone Number: [**]	Telephone Number: [**]
Email: [**]	Email: [**]
Technical Monitor	Additional POC
	[**]
Telephone Number:	Telephone Number: [**]
Email:	Email: [**]
Contracting Officer [**] Telephone Number: [**] Email: [**]
Budget Specialist [**] Telephone Number: [**] Email: [**]

 

 

Department of Energy  Idaho Operations Office 1955 Fremont Avenue Idaho Falls, ID 83415

 

October 30, 2020

 

[**]

X-Energy, LLC 801 Thompson Ave

Rockville, MD 20852

 

SUBJECT:

Authorization of Pre-award Costs for Advance Reactor Demonstration Program X- Energy Xe-100 Reactor Design

 

REFERENCE:

Funding Opportunity DE-FOA-0002271, “Re: Advanced Reactor Demonstration Funding Opportunity Award” Letter dated October 26, 2020.

 

Dear Ms. Lester:

 

In accordance with 2 CFR 200.458, Pre-contract costs and the “Department of Energy Guide to Financial Assistance” dated April 2017, authorization is given to incur pre-award costs under the subject project and reference pending award. This pre-award cost authorization is valid for ninety (90) calendar days from November 2, 2020. Should the final actual award be later than ninety (90) days from November 2, 2020, authorization to incur further pre-award costs must be extended by written approval from the Department of Energy Contracting Officer.

 

Pre-award expenditures are made at the recipient’s risk and do not impose an obligation on DOE:

 

(1) in the absence of appropriations; (2) if an award is not made; or (3) if an award is made for a lesser amount than the recipient anticipated. Pre-award costs incurred are allowable to the extent that they would have been allowable if incurred after the date of the financial assistance award amendment.

 

If you have any questions, please do not hesitate to contact [**] via email at [**].

 

	Sincerely,
	[**]	Digitally signed by
		[**]
		Date: 2020.10.30
		12:33:57 -06'00'
	[**]
	Contract Management Division

  

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 20, 2026, with respect to the consolidated financial statements of X-Energy Reactor Company, LLC included in the Registration Statement (Form S-1) and related Prospectus of X-Energy, Inc. dated March 20, 2026.

 

/s/ Ernst & Young LLP

 

Tysons, Virginia

 

March 20, 2026

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 20, 2026 with respect to the financial statements of X-Energy, Inc. included in the Registration Statement (Form S-1) and related Prospectus of X-Energy, Inc.

 

/s/ Ernst & Young LLP

 

Tysons, Virginia

 

March 20, 2026

 

 

S-1 S-1 EX-FILING FEES 0002088896 X-Energy, Inc. N/A N/A 0002088896 2026-03-17 2026-03-17 0002088896 1 2026-03-17 2026-03-17 iso4217:USD xbrli:pure xbrli:shares

Calculation of Filing Fee Tables

S-1

X-Energy, Inc.

Table 1: Newly Registered and Carry Forward Securities	☐Not Applicable

		Security Type	Security Class Title	Fee Calculation or Carry Forward Rule	Amount Registered	Proposed Maximum Offering Price Per Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee	Carry Forward Form Type	Carry Forward File Number	Carry Forward Initial Effective Date	Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
Newly Registered Securities
Fees to be Paid	1	Equity	Class A common stock	457(o)			$ 100,000,000.00	0.0001381	$ 13,810.00
Fees Previously Paid
Carry Forward Securities
Carry Forward Securities
			Total Offering Amounts:				$ 100,000,000.00		$ 13,810.00
			Total Fees Previously Paid:						$ 0.00
			Total Fee Offsets:						$ 0.00
			Net Fee Due:						$ 13,810.00

Offering Note

1	(1A) Includes Class A common stock, par value $0.0001 per share ("Class A common stock"), issuable upon exercise of the underwriters' option to purchase additional Class A common stock, if any. (1B) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

Table 2: Fee Offset Claims and Sources	☑Not Applicable

		Registrant or Filer Name	Form or Filing Type	File Number	Initial Filing Date	Filing Date	Fee Offset Claimed	Security Type Associated with Fee Offset Claimed	Security Title Associated with Fee Offset Claimed	Unsold Securities Associated with Fee Offset Claimed	Unsold Aggregate Offering Amount Associated with Fee Offset Claimed	Fee Paid with Fee Offset Source
Rules 457(b) and 0-11(a)(2)
Fee Offset Claims
Fee Offset Sources
Rule 457(p)
Fee Offset Claims
Fee Offset Sources

Table 3: Combined Prospectuses	☑Not Applicable

	Security Type	Security Class Title	Amount of Securities Previously Registered	Maximum Aggregate Offering Price of Securities Previously Registered	Form Type	File Number	Initial Effective Date