OPEN 8-K
Opendoor Technologies Inc. (OPEN)
8-K
2026-08-13
For: 2026-08-12
View Original
Added on
August 13, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 12, 2026
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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(Address of principal executive offices)
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(Zip Code)
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(480 ) 618-6760
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading
Symbol(s)
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Name of each exchange
on which registered
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of
the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised
financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 |
Entry into a Material Definitive Agreement
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On August 12, 2026, Opendoor Technologies Inc. (the “Company”) entered into separate, privately negotiated subscription agreements (the “Subscription Agreements”) with
certain investors, pursuant to which the Company will issue $650 million aggregate principal amount of its 0.00% Convertible Senior Notes due 2030 (the “Notes”) to such investors (the “Transactions”), in each case, pursuant to exemptions from
registration under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations thereunder.
The Notes will be issued under an indenture (the “Indenture”), expected to be dated on or around August 19, 2026, between the Company and U.S. Bank Trust Company, National
Association.
The Notes will be senior, unsecured obligations of the Company. The Notes will not bear regular
interest, and the principal amount of the Notes will not accrete. The Notes will mature on August 15, 2030, unless earlier repurchased, redeemed or converted. Before February 15, 2030, noteholders will have the right to convert their Notes only
upon the occurrence of certain events. From and including February 15, 2030, noteholders may convert their Notes at any time at their election until the close of business on the second scheduled trading day immediately before the maturity date. The
Company will settle conversions by paying or delivering, as the case may be, cash, shares of its common stock or a combination of cash and shares of its common stock, at its election. The initial conversion rate is 212.2466 shares of common stock
per $1,000 principal amount of Notes, which represents an initial conversion price of approximately $4.71 per share of common stock. Based on the initial conversion rate, 137,960,290 shares of common stock would be issued upon conversion of the
Notes. The initial conversion price represents a premium of approximately 35% over the last reported sale price of $3.49 per share of the Company’s common stock on August 12, 2026. The conversion rate and conversion price will be subject to
adjustment upon the occurrence of certain events.
Except in the case of a “Cleanup Redemption” (as defined below) the Company may not redeem the Notes prior to February 22, 2029. Notes will be redeemable, in whole or in
part (subject to certain limitations), for cash at the Company’s option at any time, and from time to time, on a redemption date on or after February 22, 2029 and on or before the 36th scheduled trading day immediately before the maturity date, but
only if the last reported sale price per share of the Company’s common stock exceeds 130% of the conversion price for a specified period of time and certain liquidity conditions have been satisfied. The redemption price will be equal to the principal
amount of the Notes to be redeemed, plus accrued and unpaid special interest and additional interest, if any, to, but excluding, the redemption date. In addition, the Company may redeem for cash all, but not less than all, of the Notes, at any time
on or before the 36th scheduled trading day immediately before the maturity date, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid special interest and additional interest, if any, to,
but excluding, the redemption date if less than $75 million aggregate principal amount of the Notes remains outstanding and certain liquidity conditions have been satisfied (such redemption, a “Cleanup Redemption”).
Noteholders will have the right to require the Company to repurchase all or part of their Notes for cash, subject to certain conditions, in the event of certain fundamental
changes (as defined in the Indenture), at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid special interest and additional interest, if any, to, but excluding, the relevant repurchase
date.
In connection with the Transactions, the Company intends to repurchase approximately $158 million of shares of its common stock from certain participants in the
Transactions through a financial intermediary at the last reported sale price of the common stock on August 12, 2026, and the Company has been advised that J. Wood Capital Advisors LLC (“JWCA”), the placement agent for the Transactions, intends to
purchase approximately $25 million of shares of the Company’s common stock from certain participants in the Transactions through a financial intermediary at a discount to the last reported sale price of the common stock on August 12, 2026. The
Company and JWCA have also each agreed not to issue or sell such shares of common stock for 30 days. Such concurrent repurchases by the Company and purchases by JWCA of the Company’s common stock could increase (or reduce the size of any decrease
in) the market price of the Company’s common stock or the Notes.
In connection with the Transactions, the Company entered into privately negotiated capped call transactions (the “capped call transactions”) with certain financial
institutions (the “option counterparties”). The capped call transactions cover, subject to certain customary adjustments, the number of shares of the Company’s common stock that will initially underlie the Notes.
The cap price of the capped call transactions is initially $6.98 per share of the Company’s common stock, which represents a 100% premium over the closing price of the
Company’s common stock on August 12, 2026, and is subject to certain adjustments under the terms of the capped call transactions.
The capped call transactions are expected generally to reduce the potential dilution to the Company’s common stock upon any conversion of the Notes and/or offset any
potential cash payments the Company is required to make in excess of the principal amount of converted Notes, as the case may be, upon conversion of the Notes. If, however, the market price per share of the Company’s common stock, as measured under
the terms of the capped call transactions, exceeds the cap price of the capped call transactions, there would nevertheless be dilution and/or there would not be an offset of such potential cash payments, in each case, to the extent that such market
price exceeds the cap price of the capped call transactions.
In connection with establishing their initial hedge positions with respect to the capped call transactions, the option counterparties and/or their respective affiliates
expect to enter into various derivative transactions with respect to the Company’s common stock and/or purchase shares of its common stock concurrently with or shortly after the Company’s entry into the Transactions. This activity could increase (or
reduce the size of any decrease in) the market price of the Company’s common stock or the Notes at that time.
In addition, the option counterparties or their respective affiliates may modify their hedge positions by entering into or unwinding various derivative transactions with
respect to the Company’s common stock and/or purchasing or selling the Company’s common stock or other securities of the Company in secondary market transactions following the Company’s entry into the Transactions and prior to the maturity of the
Notes (and are likely to do so following any conversion of the Notes, any repurchase of the Notes by the Company on any fundamental change repurchase date, any redemption date or any other date on which the Notes are retired by the Company, in each
case, if the Company exercises its option to terminate the relevant portion of the capped call transactions). This activity could also cause or avoid an increase or a decrease in the market price of the Company’s common stock or the Notes, which
could affect the ability of noteholders to convert their Notes, and, to the extent the activity occurs during any observation period related to a conversion of Notes, it could affect the amount and value of the consideration that noteholders will
receive upon conversion of the Notes.
The Company expects that the gross proceeds from the Transactions will be $650 million, excluding offering fees and transaction expenses. The Company intends to use
approximately $52.5 million of the proceeds from the Transactions to fund the cost of entering the capped
call transactions and approximately $158.0 million to repurchase approximately 45.3 million shares of its common stock. The Company intends to use the remainder of the proceeds
from the Transactions for general corporate purposes. The Transactions and the capped call transactions are expected to close concurrently on or about August 19, 2026, subject to customary closing conditions.
A copy of the Form of Subscription Agreement and a copy of the Form of Capped Call Confirmation are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on
Form 8-K and are incorporated herein by reference. Each of the foregoing descriptions of the Form of Subscription Agreement and the Form of Capped Call Confirmation is qualified in its entirety by reference to the applicable exhibit.
This Current Report on Form 8-K does not constitute an offer to sell, nor is it a solicitation of an offer to buy, the Notes or the Company’s common stock, nor shall there
be any sale of the Notes or the Company’s common stock in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any state or any jurisdiction.
| Item 3.02 |
Unregistered Sales of Equity Securities
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The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference. The offer and sale of the Notes and the common stock of
the Company issuable upon conversion, if any, have not been registered under the Securities Act or the securities laws of any other jurisdiction, and may not be offered or sold in the United States absent registration or an applicable exemption from
such registration requirements. The Notes were offered in a private placement in reliance on Section 4(a)(2) of the Securities Act. The issuance of common stock upon conversion, if any, is expected to be exempt from registration pursuant to Section
3(a)(9) of the Securities Act as involving an exchange by the Company exclusively with its security holders.
| Item 7.01 |
Regulation FD Disclosure
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On August 13, 2026, the Company issued a press release announcing the Transactions and the capped call transactions. A copy of the press release announcing the Transactions
and the capped call transactions is attached hereto as Exhibit 99.1.
The information contained in Item 7.01 of this Current Report (including Exhibit 99.1 attached hereto) shall not be deemed “filed” for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange
Act, except as shall be expressly set forth by specific reference in such a filing.
Forward Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of Section 27A of the Private Securities Litigation Reform Act of 1995, as
amended. All statements contained in this Current Report on Form 8-K that do not relate to matters of historical fact should be considered forward-looking, including statements regarding proceeds from the Transactions, use of proceeds from the
Transactions, anticipated closing of the Transactions and effects of entering into the capped call transactions described above. These forward-looking statements generally are identified by the words “anticipate”, “believe”, “contemplate”,
“continue”, “could”, “estimate”, “expect”, “forecast”, “future”, “guidance”, “intend”, “may”, “might”, “opportunity”, “outlook”, “plan”, “possible”, “potential”, “predict”, “project”, “should”, “strategy”, “strive”, “target”, “vision”, “will”, or
“would”, any negative of these words or other similar terms or expressions. The absence of these words does not mean that a statement is not forward-looking. Forward-looking statements are predictions, projections and other statements about future
events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties that can cause actual results to differ materially from those in such forward-looking statements. The factors that could cause or
contribute to actual future events to differ materially from the forward-looking statements in this Current Report on Form 8-K include but are not limited to: our ability to consummate the Transactions; risks related to our indebtedness; the current
and future health and stability of the economy, financial conditions and residential housing market, including any extended downturns or slowdowns; changes in general economic and financial conditions (including federal monetary policy, the
imposition of tariffs and price or exchange controls, interest rates, inflation, actual or anticipated recession, home price fluctuations, and housing inventory), as well as the probability of such changes occurring, that may impact demand for our
products and services, lower our profitability or reduce our access to future financings; actual or anticipated fluctuations in our financial condition and results of operations; changes in projected operational and financial results; and our real
estate assets and increased competition in the U.S. residential real estate industry; our ability to operate and grow our core business products, including the ability to obtain sufficient financing and resell purchased homes. The foregoing list of
factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described under the caption “Risk Factors” in our most recent Annual Report on Form 10-K filed with the Securities and Exchange
Commission (the “SEC”) on February 19, 2026, as updated by the Company’s Quarterly Reports on Form 10-Q and other filings with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and
results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and, except as
required by law, we assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. We do not give any assurance that we will achieve our expectations.
| Item 9.01 |
Financial Statements and Exhibits.
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(d) Exhibits.
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Exhibit No.
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Description
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Form of Subscription Agreement.
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Form of Capped Call Confirmation.
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Press Release, dated August 13, 2026.
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104
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Cover Page Interactive Data File (Cover page XBRL tags are embedded within the Inline
XBRL document).
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Opendoor Technologies Inc.
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Date: August 13, 2026
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By:
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/s/ Christy Schwartz
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Name:
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Christy Schwartz
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Title:
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Chief Financial Officer
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August 12, 2026
Opendoor Technologies Inc.
1295 West Washington Street, Suite 115
Tempe, AZ 85288
Attention: Chief Financial Officer
| Re: |
Subscription for 0.00% Convertible Senior Notes due 2030
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Ladies and Gentlemen:
Opendoor Technologies Inc., a Delaware corporation (the “Company”),
is offering a new series of its 0.00% Convertible Senior Notes due 2030 (the “Notes”). The Notes will be convertible into cash, shares (“Underlying Shares”) of common stock of the Company, par value $0.0001 per share (“Stock”), or a combination of cash and Underlying Shares, at
the Company’s election, in accordance with the terms of the Indenture (as defined below).
The undersigned (the “Investor”), for itself and, on behalf of the accounts (if any) listed on Exhibit A hereto for whom the Investor has been duly authorized to enter into the Subscription (as defined below) (each, including the Investor if it is listed on Exhibit A, a “Subscriber”), may subscribe for and purchase from the Company Notes for cash (the “Subscription”), pursuant and subject to the terms and conditions set forth in this agreement (the “Subscription Agreement”
or this “Agreement”).
The Subscribers (including the Investor, as applicable) are referred to collectively as the “Purchasers,”
and each Purchaser (other than the Investor) is referred to herein as an “Account.”
The Investor hereby confirms that this Agreement relates to participation by the Purchasers, taken together, in the Subscription.
The Investor and each Account understands that the Subscription is being made without registration under the Securities Act of 1933, as amended (the “Securities Act”), or any securities laws of any state of the United States or of any other jurisdiction, and that the Subscription is only being made to investors who are
institutional “accredited investors” within the meaning of Rule 501 of Regulation D under the Securities Act that are also “qualified institutional buyers” (within the meaning of Rule 144A under the Securities Act) in reliance upon an exemption from
registration under Section 4(a)(2) of the Securities Act. The Subscription is described in, and is being made pursuant to, the draft Indenture relating to the Notes (the “Indenture”) to be entered into as of the Closing Date (as defined below) between the Company and U.S. Bank Trust Company, National Association, as Trustee (the “Notes Trustee”), as supplemented by the Pricing Term Sheet, dated as of the date hereof (the “Pricing Term Sheet” and, together with the Indenture, the “Transaction Documents”).
In connection with the issuance of the Notes, the Company expects the Placement Agent (as defined below) to purchase shares of Stock from certain institutional investors.
| 1. |
The Subscription. Subject to the terms and conditions of this Subscription
Agreement, the Investor hereby agrees to purchase from the Company, and the Company hereby agrees to issue and sell to the Investor and/or any such Account, Notes (the “Purchased
Notes”) having an aggregate principal amount as set forth in column 2 of Exhibit A hereto, for an aggregate purchase price in cash in respect of such Purchased Notes as
set forth in column 3 of Exhibit A (such aggregate cash purchase price, the “Cash Purchase Price”). For the
avoidance of doubt, such Cash Purchase Price shall not be adjusted for accrued interest, if any, if the Closing (as defined below) occurs after August 19, 2026.
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| 2. |
The Closing. The closing of the Subscription (the “Closing”) shall take place electronically at 10:00 AM, New York City time, on August 19, 2026, or at such other time and place as the Company may designate by notice to the
Investor (the “Closing Date”); provided that the Closing Date cannot be later than August 26, 2026 without the prior written consent of the Investor.
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| 3. |
Closing Mechanics.
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| a. |
The Depository Trust Company (“DTC”) will act as securities depositary for the Notes.
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| c. |
On the Closing Date, subject to satisfaction of the conditions precedent specified in Section 6 hereof, and the prior
receipt by the Company of the Cash Purchase Price from the Investor on behalf of each Subscriber:
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| (i) |
the Company shall execute and deliver the Indenture, dated as of the Closing Date, between the Company and the Notes Trustee; and
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| (ii) |
the Company shall execute, cause the Notes Trustee to authenticate and cause to be delivered to the DTC account(s) specified by the Investor or the relevant Account in Exhibit C hereto, the Purchased Notes.
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All questions as to the form of all documents and the validity and acceptance of the Notes will be determined by the Company, in its sole discretion,
which determination shall be final and binding.
| 4. |
Representations and Warranties of the Company. The Company represents and
warrants to the Investor (and each Account, as applicable) that:
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| a. |
Organization. The Company is duly organized and is validly
existing under the laws of the State of Delaware.
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| b. |
Due Authorization. This Subscription Agreement has been duly
authorized, executed and delivered by the Company.
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| c. |
Notes. The Notes have been duly authorized by the Company
and, when duly executed by the Company in accordance with the terms of the Indenture, assuming due authentication of the Notes by the Notes Trustee, upon delivery to the Investors in accordance with the terms of the Subscription, will be
validly issued and delivered and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) (collectively, the “Enforceability Exceptions”). The maximum number of Underlying Shares initially issuable upon
conversion of the Notes (assuming settlement in shares of Stock to the maximum extent permitted by the Indenture and taking into account the maximum make-whole adjustment under the Indenture) have been duly and validly authorized and
reserved for by the Company and, when issued upon conversion of the Notes in accordance with the terms of the Notes and the Indenture, will be validly issued, fully paid and non-assessable, and the issuance of any Underlying Shares will
not be subject to any preemptive, participation, rights of first refusal or similar rights. At or prior to the Closing, a notice for the listing of additional shares covering the Underlying Shares shall have been submitted to the Nasdaq
Global Select Market.
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| d. |
Indenture. The Company has all requisite corporate power and
authority to perform its obligations under the Indenture. The Indenture has been duly authorized by the Company, and will have been duly executed and delivered by the Company on or prior to the Closing. Assuming due authorization, execution
and delivery by the Notes Trustee thereto, the Indenture, upon execution and delivery thereof by the Company, will constitute the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms,
subject to the Enforceability Exceptions.
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| e. |
Exemption from Registration. Assuming the accuracy of the
representations and warranties of the Investor and each other investor executing a Subscription Agreement, (1) the issuance of the Purchased Notes in connection with the Subscription pursuant to this Subscription Agreement is exempt from
the registration requirements of the Securities Act; and (2) the Indenture is not required to be qualified under the Trust Indenture Act of 1939, as amended.
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| f. |
New Class. The Notes, when issued, will not be of the same
class as securities listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended, or quoted in a U.S. automated inter-dealer quotation system, within the meaning of Rule
144A(d)(3)(i) under the Securities Act.
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| g. |
No Conflicts. The issuance of the Notes pursuant to the
Subscription Agreement, the execution, delivery and performance, as applicable, by the Company of its obligations under the Notes, the Indenture and the Subscription Agreement, and the consummation of the transactions contemplated hereby
and thereby, will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, license, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational document of the Company or any of its subsidiaries
or (iii) result in any violation of any statute or any judgment, order, decree, rule or regulation of any court or arbitrator or federal, state, local or foreign governmental agency or regulatory authority having jurisdiction over the
properties or assets of the Company or any of its subsidiaries or any of their properties or assets, except, with respect to clauses (i) and (iii), conflicts, breaches, violations, impositions or defaults that would not reasonably be
expected to have a material adverse effect on the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Company and its subsidiaries taken as a whole or a material adverse
effect on the performance by the Company of its obligations under the Subscription Agreement, the Indenture or the Notes or the consummation of any of the transactions contemplated hereby or thereby.
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| h. |
Solvency. On the date hereof and on the Closing Date, (A) the
present fair market value (or present fair saleable value) of the total assets of Company is not less than the total amount required to pay the probable total liabilities (including contingent liabilities) of the Company as they mature and
become absolute, (B) the Company has the ability to pay its debts and obligations as such debts mature, and (C) the Company is not “insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of the
United States Code)).
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| i. |
Mutual Negotiation. The Company acknowledges that the terms of the Subscription have been mutually negotiated between the parties.
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| 5. |
Representations and Warranties of the Investor. The Investor hereby
represents and warrants to and covenants with the Company, on behalf of itself and each Account, as applicable, that:
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| a. |
The Investor is a corporation, limited partnership, limited liability company or other entity, as the case may be, duly formed, validly existing and in good standing under the laws
of the jurisdiction of its formation.
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| b. |
This Agreement, when executed and delivered, has been duly authorized, executed and delivered by the Investor and constitutes the valid and binding obligation of the Investor,
enforceable in accordance with its terms, except that such enforcement may be subject to the Enforceability Exceptions. If the Investor is executing this Subscription Agreement on behalf of an Account, (i) the Investor has all requisite
discretionary and contractual authority to enter into this Subscription Agreement on behalf of, and, bind, each Account to the terms of this Agreement and (ii) Exhibit A hereto is a
true, correct and complete list of the name of each Subscriber and the aggregate principal amount of Purchased Notes each such Subscriber agrees to purchase hereunder.
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| c. |
Participation in the Subscription will not contravene (1) any law, rule, regulation or governmental or judicial decrees, injunctions or orders binding on the Investor or any Account
or any investment guideline or restriction applicable to the Investor (or, if applicable, any Account), (2) the charter or bylaws (or equivalent organizational documents) of the Investor (or, if applicable, any Account) or (3) any agreement
or instrument to which the Investor or any Account is a party or by which the Investor or any Account or any of their respective assets are bound.
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| d. |
The Investor (or applicable Account) is a resident of the jurisdiction set forth in Exhibit C and, unless otherwise set
out in Exhibit A hereto, as applicable, is not acquiring the Purchased Notes as a nominee or agent or otherwise for any other person.
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| e. |
The Investor and each Account will comply with all applicable laws and regulations in effect in any jurisdiction in which the Investor or such Account purchases or acquires pursuant
to the Subscription, or sells Notes and will obtain any consent, approval or permission required for such purchases, acquisitions or sales under the laws and regulations of any jurisdiction to which the Investor or such Account is subject or
in which the Investor or such Account makes such purchases, acquisitions or sales, and the Company shall not have any responsibility therefor.
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| f. |
The Investor and each Account has received a copy of the Transaction Documents. The Investor acknowledges that: (1) no person has been authorized to give any information or to make
any representation concerning the Subscription or the Company or any of its subsidiaries, other than as contained in this Agreement or the Transaction Documents or in the information given by the Company’s duly authorized officers and
employees in connection with the Investor’s examination of the Company and its subsidiaries and the terms of the Subscription; and (2) the Company and its subsidiaries do not take any responsibility for, and cannot provide any assurance as to
the reliability of, any other information that may have been provided to the Investor. The Investor hereby acknowledges that J. Wood Capital Advisors LLC (the “Placement Agent”)
does not take any responsibility for, and can provide no assurance as to the reliability of, the information set forth in the Transaction Documents or any such other information provided or deemed provided to the Investor by the Company.
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| g. |
The Investor and each Account understands and accepts that acquiring the Notes in the Subscription involves risks. The Investor and each Account has such knowledge, skill and
experience in business, financial and investment matters that the Investor and each Account is capable of evaluating the merits and risks of the Subscription and an investment in the Notes. With the assistance of its own professional advisors
(to the extent the Investor and each Account has deemed appropriate), the Investor and each Account has made its own legal, tax, accounting and financial evaluation of the merits and risks of an investment in the Notes and the consequences of
the Subscription and this Agreement. The Investor and each Account has considered the suitability of the Notes as an investment in light of its own circumstances and financial condition, and the Investor is and each Account is able to bear
the risks associated with an investment in the Notes. The Investor and each Account understands that it should consult with its own tax advisors in order to determine the U.S. federal, state and local tax consequences of the ownership and
disposition of the Notes, in light of the Investor's and each Account's particular circumstances.
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| h. |
The Investor confirms that neither it nor any Account is relying on any communication (written or oral) of the Company or the Placement Agent or any of their respective agents or
affiliates as investment advice or as a recommendation to participate in the Subscription and receive the Notes pursuant to the terms hereof. The Investor confirms that it has read the Indenture relating to the Notes and has not relied on any
statement (written or oral) of the Company, the Placement Agent or any of their respective affiliates as to the terms of the Notes. It is understood that information provided in the Transaction Documents, or by the Company or the Placement
Agent or any of their respective agents or affiliates, shall not be considered investment advice or a recommendation with respect to the Subscription, and that none of the Company, the Placement Agent or any of their respective agents or
affiliates is acting or has acted as an advisor to the Investor or any Account in deciding whether to participate in the Subscription.
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| i. |
The Investor confirms, for itself and for each Account, that neither the Company nor the Placement Agent have (1) given any guarantee or representation as to the potential success,
return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) of an investment in the Notes; or (2) made any representation to the Investor regarding the legality of an investment in the Notes under applicable
investment guidelines, laws or regulations. In deciding to participate in the Subscription, neither the Investor nor any Account is relying on the advice or recommendations of the Company or the Placement Agent, and the Investor and each
Account has made its own independent decision that the investment in the Notes is suitable and appropriate for the Investor or such Account.
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| j. |
The Investor and each Account is a sophisticated participant in the transactions contemplated hereby and has such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of an investment in the Notes, is experienced in investing in capital markets and is able to bear the economic risk of an investment in the Notes. The Investor and each Account is familiar with the
business and financial condition and operations of the Company and its subsidiaries and has conducted its own investigation of the Company and its subsidiaries and the Notes and has consulted with its own advisors concerning such matters and
shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby. The Investor and each Account has had access to the Company filings with the Securities and Exchange Commission and such
other information concerning the Company and its subsidiaries and the Notes as it deems necessary to enable it to make an informed investment decision concerning the Subscription. The Investor and each Account has been offered the opportunity
to ask questions of the Company and its representatives and has received answers thereto as the Investor or such Account deems necessary to enable it to make an informed investment decision concerning the Subscription and the Notes. Neither
such inquiries nor any other due diligence investigations conducted by such Investor or its advisors, or its representatives shall modify, amend or affect such Investor’s right to rely on the Company’s representations and warranties contained
herein.
|
5
| k. |
The Investor and each Account understands that no federal, state, local or foreign agency has passed upon the merits or risks of an investment in the Notes or made any finding or
determination concerning the fairness or advisability of such investment.
|
| l. |
The Investor and each Account is an institutional “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act as well as a “qualified institutional buyer”
as defined in Rule 144A under the Securities Act. The Investor, for itself and on behalf of each Account, agrees to furnish any additional information reasonably requested by the Company or any of their affiliates to assure compliance with
applicable U.S. federal and state securities laws in connection with the Subscription.
|
| m. |
The Investor and each Account is not directly, or indirectly through one or more intermediaries, controlling or controlled by, or under direct or indirect common control with, the
Company and is not, and has not been for the immediately preceding three months, an “affiliate” (within the meaning of Rule 144 under the Securities Act) of the Company.
|
| p. |
The Investor and each Account acknowledges that neither the Notes nor the Underlying Shares have been registered under the Securities Act. As a result, the Notes, and if converted to
Underlying Shares, the Underlying Shares, may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons, except pursuant to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act as described in the Indenture (including, but not limited to, Section 2.10 thereof), and the Investor, for itself and on behalf of each Account, hereby agrees that neither it nor any Account will sell the
Notes nor the Underlying Shares other than in compliance with such transfer restrictions. Further, the Investor and each Account acknowledges that (1) the Notes and, if converted to the Underlying Shares, the Underlying Shares, will carry a
restrictive legend and (2) the Notes will be designated with a restricted CUSIP number, in each case, until such time, if any, as the restrictive legend can be removed in the Company’s reasonable judgment in accordance with the terms of the
Indenture. The Investor and each Account acknowledges that the Notes may be designated with a restricted CUSIP number indefinitely.
|
| q. |
The Investor and each Account acknowledges that the terms of the Subscription have been mutually negotiated between the Investor (for itself and on behalf of each Account), and the
Company. The Investor was given a meaningful opportunity to negotiate the terms of the Subscription on behalf of itself and each Account.
|
6
| r. |
The Investor and each Account acknowledges the Company intends to pay an advisory fee to the Placement Agent and that the Placement Agent intends to purchase shares of Stock.
|
| s. |
The Investor will, for itself and on behalf of each Account, upon request, execute and deliver any additional documents, information or certifications reasonably requested by the
Company or the Notes Trustee to complete the Subscription.
|
| t. |
The Investor and each Account understands that, unless the Investor notifies the Company in writing to the contrary prior to the Closing, each of the Investor’s representations and
warranties contained in this Agreement will be deemed to have been reaffirmed and confirmed as of the Closing, taking into account all information received by the Investor.
|
| u. |
No Subscriber’s participation in the Subscription was conditioned upon a minimum aggregate principal amount of Notes issued for cash in the Subscription.
|
| v. |
The Investor acknowledges that it and each Account had a sufficient amount of time to consider whether to participate in the Subscription and that neither the Company nor the
Placement Agent has placed any pressure on the Investor or any Account to respond to the opportunity to participate in the Subscription. The Investor acknowledges that neither it nor any Account became aware of the Subscription through any
form of general solicitation or advertising within the meaning of Rule 502 under the Securities Act.
|
| w. |
The operations of the Investor and each Account have been conducted in material compliance with the rules and regulations administered or conducted by the U.S. Department of Treasury
Office of Foreign Assets Control (“OFAC”), the rules and regulations of the Foreign Corrupt Practices Act (“FCPA”) and the Anti-Money Laundering (“AML”) rules in the Bank Secrecy Act applicable to the Investor. The Investor has performed due diligence necessary
to reasonably determine that its (or, where applicable, any Account’s) beneficial owners are not named on the lists of denied parties or blocked persons administered by OFAC, resident in or organized under the laws of a country that is the
subject of comprehensive economic sanctions and embargoes administered or conducted by OFAC (“Sanctions”), are not otherwise the subject of Sanctions and have not been
found to be in violation or under suspicion of violating OFAC, FCPA or AML rules and regulations.
|
| x. |
The Investor and each Account acknowledges and agrees that the Placement Agent has not acted as a financial advisor or fiduciary to the Investor or such Account and that the
Placement Agent and its respective directors, officers, employees, representatives and controlling persons have no responsibility for making, and have not made, any independent investigation of the information contained herein or in the
Company’s Securities and Exchange Commission filings and make no representation or warranty to the Investor or such Account, express or implied, with respect to the Company or the Subscription or the accuracy, completeness or adequacy of the
information provided to the Investor or the Account or any other publicly available information, nor will any of the foregoing persons be liable for any loss or damages of any kind resulting from the use of the information contained therein
or otherwise supplied to the Investor or such Account.
|
| y. |
The Investor and each Account acknowledges and agrees that no public market exists for the Notes and that there is no assurance that a public market will ever develop for the Notes.
Furthermore, the Investor and each Account acknowledges that all of the Notes, including the Purchased Notes, shall be assigned the same restricted CUSIP number.
|
7
| 8. |
Covenant of the Investor. No later than one (1) business day after the
date hereof, the Investor agrees to deliver settlement instructions for each Purchaser to the Company substantially in the form of Exhibit C hereto.
|
| 9. |
Waiver, Amendment. Neither this Agreement nor any provisions hereof shall
be modified, changed, discharged or terminated except by an instrument in writing, signed by the party against whom any waiver, change, discharge or termination is sought.
|
| 10. |
Assignability. Neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by the Company or the Investor without the prior written consent of the other party.
|
| 11. |
Waiver of Jury Trial. EACH OF THE COMPANY AND THE INVESTOR (FOR ITSELF
AND, IF APPLICABLE, ON BEHALF OF EACH ACCOUNT) IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED BY THIS SUBSCRIPTION AGREEMENT.
|
| 12. |
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THAT WOULD RESULT IN THE APPLICATION OF ANY LAW OTHER THAN THE LAW OF THE STATE OF NEW YORK.
|
8
| 14. |
Venue. Each of the Company and the Investor (for itself and, if
applicable, on behalf of each Account) irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to in Section 13. Each of the Company and the Investor (for itself and, if applicable, on behalf of
each Account) irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
|
| 15. |
Service of Process. Each of the Company and the Investor (for itself and,
if applicable, on behalf of each Account) irrevocably consents to service of process in the manner provided for notices in Section 18. Nothing in this Subscription Agreement will
affect the right of any party to this Agreement to serve process in any other manner permitted by law.
|
| 16. |
Section and Other Headings. The section and other headings contained in
this Subscription Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Subscription Agreement.
|
| 17. |
Counterparts. This Agreement may be executed, either manually or by way of a digital signature provided by
DocuSign (or similar digital signature provider), by one or more of the parties hereto in any number of separate counterparts (including by facsimile or other electronic means, including telecopy, email or otherwise), and all of said
counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Subscription Agreement (whether executed manually or by way of a digital signature as described herein
this Section 17) by facsimile or other transmission (e.g., “pdf” or “tif”
format) shall be effective as delivery of a manually executed counterpart hereof or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the UCC.
|
|
If to the Company:
Opendoor Technologies Inc.
1295 West Washington Street, Suite 115
Tempe, AZ 85288
Attention: Chief Financial Officer
|
| 19. |
Binding Effect. The provisions of this Subscription Agreement shall be
binding upon and accrue to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns.
|
| 20. |
Notification of Changes. The Investor (for itself and, if applicable, on
behalf of each Account) hereby covenants and agrees to notify the Company upon the occurrence of any event prior to the Closing that would cause any representation, warranty, or covenant of the Investor (and/or such Account) contained in
this Agreement to be false or incorrect in any material respect.
|
9
| 22. |
Severability. If any term or provision (in whole or in part) of this
Subscription Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Subscription Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction.
|
[Signature Pages Follow]
10
IN WITNESS WHEREOF, the Investor (for itself and, if applicable, on behalf of each Account) has executed this Subscription Agreement as of the date first written above.
|
Legal Name of Executing Investor:
|
||
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By
|
|||
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Name:
|
|||
|
Title:
|
|||
|
Legal Name:
|
|||
[Signature Page to Subscription Agreement]
|
ACCEPTED AND AGREED:
|
|||
|
Opendoor Technologies Inc.
|
|||
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By
|
|||
|
Name:
|
|||
|
Title:
|
|||
[Signature Page to Subscription Agreement]
Exhibit 10.2
|
Opendoor Technologies Inc.
1295 West Washington Street, Suite 115
Tempe, AZ, 85288
|
|
|
From:
|
[Dealer]
|
|
Re:
|
Capped Call Transaction
|
|
Date:
|
August 12, 2026
|
Dear Ladies and Gentlemen:
The purpose of this communication (this “Confirmation”) is to set forth the terms and conditions of the above-referenced transaction entered into on the Trade Date specified below
(the “Transaction”) between [Dealer] (“Dealer”)[, represented by [Agent] (“Agent”) as its agent,] and Opendoor Technologies Inc. (“Counterparty”). This communication constitutes a “Confirmation” as referred to in the ISDA 2002
Master Agreement specified below.
1. This Confirmation is subject to, and incorporates, the definitions and provisions of the 2006 ISDA Definitions (the “2006 Definitions”) and
the definitions and provisions of the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in
each case, as published by the International Swaps and Derivatives Association, Inc. (“ISDA”). In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions
will govern and in the event of any inconsistency between terms defined in the Equity Definitions and this Confirmation, this Confirmation shall govern.
This Confirmation evidences a complete and binding agreement between Dealer and Counterparty as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall be subject to an agreement (the
“Agreement”) in the form of the ISDA 2002 Master Agreement as if Dealer and Counterparty had executed an agreement in such form on the Trade Date (but without any Schedule except for (i) the election of the
laws of the State of New York as the governing law (without reference to choice of law doctrine), and (ii) the election that the “Cross-Default” provisions of Section 5(a)(vi) of the Agreement shall apply to Dealer with (a) a “Threshold Amount” of 3%
of the shareholders’ equity of [Dealer][Dealer’s ultimate parent] on the Trade Date, (b) “Specified Indebtedness” having the meaning set forth in Section 14 of the Agreement, except that it shall not include any obligation in respect of deposits
received in the ordinary course of Dealer’s banking business, (c) the phrase “, or becoming capable at such time of being declared,” being deleted from clause (1) of such Section 5(a)(vi) of the Agreement, and (d) the following sentence being added
to the end of Section 5(a)(vi) of the Agreement: “Notwithstanding the foregoing, a default under subsection (2) hereof shall not constitute an Event of Default if (i) the default was caused solely by error or omission of an administrative or
operational nature; (ii) funds were available to enable the relevant party to make payment when due; and (iii) the payment is made within two Local Business Days of such party’s receipt of written notice of its failure to pay.”).
All provisions contained in, or incorporated by reference to, the Agreement will govern this Confirmation except as expressly modified herein. In the event of any inconsistency between this Confirmation and either the
Definitions or the Agreement, this Confirmation shall govern.
The Transaction hereunder shall be the sole Transaction under the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or any confirmation or other agreement between Dealer and
Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which
Dealer and Counterparty are parties, the Transaction shall not be considered a Transaction under, or otherwise governed by, such existing or deemed ISDA Master Agreement.
2. The Transaction constitutes a Share Option Transaction for purposes of the Equity Definitions. The terms of the particular Transaction to which this Confirmation relates are as
follows:
1
General Terms:
|
Trade Date:
|
August 12, 2026
|
|
|
Effective Date:
|
August 19, 2026, or such other date as agreed by the parties in writing.
|
|
|
Components:
|
The Transaction will be divided into individual Components, each with the terms set forth in this Confirmation, and, in particular, with the Number of Options and Expiration Date set forth in Annex A to this Confirmation. The
exercise, valuation and settlement of the Transaction will be effected separately for each Component as if each Component were a separate Transaction under the Agreement.
|
|
|
Option Style:
|
“European”, as described under “Procedures for Exercise” below.
|
|
|
Option Type:
|
Call
|
|
|
Seller:
|
Dealer
|
|
|
Buyer:
|
Counterparty
|
|
|
Shares:
|
The common stock of Counterparty, par value USD 0.0001 per share (Ticker Symbol: “OPEN”).
|
|
|
Number of Options:
|
For each Component, as provided in Annex A to this Confirmation.
|
|
|
Option Entitlement:
|
One Share per Option
|
|
|
Strike Price:
|
USD 4.7115
|
|
|
Cap Price:
|
USD 6.9800; provided that in no event shall the Cap Price be reduced to an amount less than the Strike Price in connection with any adjustment by the Calculation Agent under this Confirmation.
|
|
|
Number of Shares:
|
As of any date, a number of Shares equal to the product of (i) the Number of Options and (ii) the Option Entitlement.
|
|
|
Premium:
|
USD [_________]; Dealer and Counterparty hereby agree that notwithstanding anything to the contrary herein or in the Agreement, following the payment of the Premium, in the event that (a) an Early Termination Date (whether as a result of
an Event of Default or a Termination Event) (other than an Event of Default arising under Section 5(a)(ii) or 5(a)(iv) of the Agreement that is within Counterparty’s control) occurs or is designated with respect to any Transaction and, as a
result, Counterparty owes to Dealer the amount calculated under Section 6(d) and Section 6(e) or otherwise under the Agreement (calculated as if the Transactions terminated on such Early Termination Date were the sole Transactions under the
Agreement) or (b) Counterparty owes to Dealer, pursuant to Sections 12.2, 12.3, 12.6, 12.7, 12.8 or 12.9 of the Equity Definitions or otherwise under the Equity Definitions, an amount calculated under Section 12.8 of the Equity Definitions,
such amount shall be deemed to be zero.
|
|
|
Premium Payment Date:
|
The Effective Date
|
|
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Exchange:
|
The Nasdaq Global Select Market
|
2
|
Related Exchange:
|
All Exchanges; provided that Section 1.26 of the Equity Definitions shall be amended to add the words “United States” before the word “exchange” in the tenth line of such Section.
|
|
|
Procedures for Exercise:
|
||
|
Expiration Time:
|
The Valuation Time
|
|
|
Expiration Date:
|
For any Component, as provided in Annex A to this Confirmation (or, if such date is not a Scheduled Valid Day, the next following Scheduled Valid Day that is not already an Expiration Date for another Component); provided that if that date is a Disrupted Day, the Expiration Date for such Component shall be the first succeeding Scheduled Valid Day that is not a Disrupted Day and is not or is not deemed to be an
Expiration Date in respect of any other Component of the Transaction hereunder; and provided further that in no event shall the Expiration Date be postponed to a date later than the Final Termination
Date and, notwithstanding anything to the contrary in this Confirmation or the Equity Definitions, the Relevant Price for such Expiration Date that occurs on the Final Termination Date and is a Disrupted Day shall be the prevailing market
value per Share determined by the Calculation Agent in a good faith and commercially reasonable manner. Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any
Expiration Date, the Calculation Agent may determine in a good faith and commercially reasonable manner that such Expiration Date is a Disrupted Day only in part, in which case the Calculation Agent shall make commercially reasonable
adjustments to the Number of Options for the relevant Component for which such day shall be the Expiration Date, shall designate the Scheduled Valid Day determined in the manner described in the immediately preceding sentence as the
Expiration Date for the remaining Options for such Component and shall determine in good faith and a commercially reasonable manner the Relevant Price based on transactions in the Shares on such Disrupted Day taking into account the nature
and duration of such Market Disruption Event on such day. Any Scheduled Valid Day on which, as of the date hereof, the Exchange is scheduled to close prior to its normal close of trading shall be deemed not to be a Scheduled Valid Day; if a
closure of the Exchange prior to its normal close of trading on any Scheduled Valid Day is scheduled following the date hereof, then such Scheduled Valid Day shall be deemed to be a Disrupted Day in full.
Section 6.6 of the Equity Definitions shall not apply to any Valuation Date occurring on an Expiration Date.
|
|
|
Final Termination Date:
|
November 6, 2030
|
|
|
Automatic Exercise:
|
Applicable, which means that the Number of Options for the relevant Component will be deemed to be automatically exercised at the Expiration Time on the Expiration Date for such Component if at such time such Component is In-the-Money,
unless Buyer notifies Seller (in writing) prior to the Expiration Time on such Expiration Date that it does not wish Automatic Exercise to occur with respect to such Component, in which case Automatic Exercise will not apply with respect to
such Component. “In-the-Money” means, in respect of any Component, that the Relevant Price on the Expiration Date for such Component is greater than the Strike Price for such Component.
|
|
3
4
5
6
7
|
Announcement Event:
|
(i) The public announcement by Counterparty, any agent of Counterparty, any affiliate of Counterparty or a Valid Third Party Entity of any transaction or event that, if completed, would constitute a Merger Event or Tender Offer, or the
announcement by Counterparty of any intention to enter into a Merger Event or Tender Offer, (ii) the public announcement by Counterparty, any agent of Counterparty, any affiliate of Counterparty or a Valid Third Party Entity of any potential
acquisition or disposition by Counterparty and/or its subsidiaries where the consideration exceeds 35% of the market capitalization of Counterparty as of the date of such announcement (a “Material Transaction”),
(iii) the public announcement by Counterparty, any agent of Counterparty, any affiliate of Counterparty or a Valid Third Party Entity of an intention by Counterparty or such Valid Third Party Entity to solicit or enter into, or to explore
strategic alternatives or other similar undertaking that may include, a Merger Event, Tender Offer or Material Transaction, or (iv) any subsequent public announcement by Counterparty, any agent of Counterparty, any affiliate of Counterparty
or a Valid Third Party Entity of a change to a transaction or intention that is the subject of an announcement of the type described in clause (i), (ii) or (iii) of this sentence (including, without limitation, a new announcement relating to
such a transaction or intention or the announcement of a withdrawal from, or the abandonment or discontinuation of, such a transaction or intention). For the avoidance of doubt, the occurrence of an Announcement Event with respect to any
transaction or intention shall not preclude the occurrence of a later Announcement Event with respect to such transaction or intention. For purposes of this definition of “Announcement Event,” “Merger Event” shall mean such term as defined
under Section 12.1(b) of the Equity Definitions (but, for the avoidance of doubt, the remainder of the definition of “Merger Event” in Section 12.1(b) of the Equity Definitions following the definition of “Reverse Merger” therein shall be
disregarded).
|
|
|
Valid Third Party Entity:
|
In respect of any transaction or event, any third party (or an agent or affiliate thereof) that the Calculation Agent reasonably determines has a bona fide intent to enter into or consummate such transaction or event (or an affiliate or
agent of such a third party) (it being understood and agreed that in making such a determination, the Calculation Agent may take into consideration the effect of the relevant announcement by such third party on the Shares and/or options
relating to the Shares).
|
|
|
Notice of Merger Consideration and Consequences:
|
Upon the occurrence of a Merger Event that causes the Shares to be converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), Counterparty shall reasonably
promptly (but in any event prior to the relevant Merger Date) notify the Calculation Agent of (i) the type and amount of consideration that a holder of Shares would have been entitled to in the case of reclassifications, consolidations,
mergers, sales or transfers of assets or other transactions that cause Shares to be converted into the right to receive more than a single type of consideration and (ii) the weighted average of the types and amounts of consideration to be
received by the holders of Shares that affirmatively make such an election.
|
8
9
|
(e) Increased Cost of Hedging:
|
Not Applicable
|
||
|
Hedging Party:
|
Dealer
|
||
|
Determining Party:
|
For all applicable Extraordinary Events, Dealer; provided that, when making any determination or calculation as “Determining Party,” Dealer shall be bound by the same obligations relating to
required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if Determining Party were the Calculation Agent.
Following any determination or calculation by Determining Party hereunder, upon a written request by Counterparty, Determining Party will promptly (but in any event within five Scheduled Trading Days) provide to Counterparty in writing a
report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such determination or calculation (including any assumptions used in making such determination or
calculation), it being understood that in no event will Determining Party be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or confidential models used by it in making such
determination or calculation or any information that is subject to an obligation not to disclose such information.
|
||
|
Non-Reliance:
|
Applicable
|
||
|
Agreements and Acknowledgments Regarding Hedging Activities:
|
Applicable
|
||
|
Additional Acknowledgments:
|
Applicable
|
||
|
3. Calculation Agent:
|
Dealer; provided that, following the occurrence and during the continuance of an Event of Default pursuant to Section 5(a)(vii) of the Agreement with respect to which Dealer is the sole Defaulting
Party, Counterparty shall have the right to designate a nationally recognized third party dealer in over-the-counter corporate equity derivatives to replace Dealer as the Calculation Agent, and the parties shall work in good faith to execute
any appropriate documentation required by such replacement Calculation Agent.
|
10
|
Following any adjustment, determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty, the Calculation Agent will promptly (but in any event within five Scheduled Trading Days) provide to
Counterparty in writing a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such adjustment, determination or calculation (including any assumptions used
in making such adjustment, determination or calculation), it being understood that in no event will the Calculation Agent be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or
confidential models used by it in making such adjustment, determination or calculation or any information that is subject to an obligation not to disclose such information.
|
4. Account Details:
Dealer Payment Instructions:
[________]
Counterparty Payment Instructions:
[________]
5. Offices:
The Office of Dealer for the Transaction is: [____________]
The Office of Counterparty for the Transaction is: Inapplicable, Counterparty is not a Multibranch Party.
6. Notices: For purposes of this Confirmation:
(a) Address for notices or communications to Counterparty:
|
To:
|
Opendoor Technologies Inc.
|
|
1295 West Washington Street, Suite 115
|
|
|
Tempe, AZ, 85288
|
|
|
Attention:
|
Chief Legal Officer
|
|
Email:
|
(b) Address for notices or communications to Dealer:
|
To:
|
[____________]
|
|
Attention:
|
[____________]
|
|
Telephone:
|
[____________]
|
|
Email:
|
[____________]
|
With a copy to:
|
To:
|
[____________]
|
|
Attention:
|
[____________]
|
|
Telephone:
|
[____________]
|
|
Email:
|
[____________]
|
For the avoidance of doubt, any notice or other communication delivered by electronic messaging system, e-mail or facsimile transmission shall be deemed to be “in writing.”
11
7. Representations, Warranties and Agreements:
(a) In addition to the representations and warranties in the Agreement and those contained elsewhere herein, Counterparty represents and warrants to and for the benefit of, and agrees with, Dealer as
follows:
(i) On the Trade Date (A) Counterparty is not aware of any material non-public information regarding Counterparty or the Shares, and (B) all reports and other documents filed by
Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act when considered as a whole (with the more recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and
documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not
misleading.
(ii) On the Trade Date, (A) the Shares or securities that are convertible into, or exchangeable or exercisable for Shares, are not, and shall not be, subject to a “restricted period,”
as such term is defined in Regulation M under the Exchange Act (“Regulation M”), and (B) Counterparty is not engaged in any “distribution,” as such term is defined in Regulation M, other than a distribution
meeting the requirements of the exceptions set forth in Rules 101(b)(10) and 102(b)(7) or Rule 102(c)(1)(i) of Regulation M. Counterparty shall not, until the third Exchange Business Day immediately following the Trade Date, engage in any such
distribution.
(iii) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that neither Dealer nor any of its affiliates is making any representations or
warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic 815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC 815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity (or any successor issue statements).
(iv) Without limiting the generality of Section 3(a)(iii) of the Agreement, the Transaction will not violate Rule 13e-1 or Rule 13e-4 under the Exchange Act.
(v) On or prior to the Trade Date, Counterparty shall deliver to Dealer a resolution of Counterparty’s board of directors authorizing the Transaction.
(vi) Counterparty is not entering into this Confirmation to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to
manipulate the price of the Shares (or any security convertible into or exchangeable for Shares) or otherwise in violation of the Exchange Act.
(vii) Counterparty is not, and after giving effect to the transactions contemplated hereby will not be, required to register as, an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended.
(viii) On and immediately after each of the Trade Date and the Premium Payment Date, Counterparty is not “insolvent” (as such term is defined under Section 101(32) of the U.S.
Bankruptcy Code (Title 11 of the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase the aggregate Number of Shares for the Transaction in compliance with the laws of the
jurisdiction of Counterparty’s incorporation (including the adequate surplus and capital requirements of Sections 154 and 160 of the General Corporation Law of the State of Delaware).
(ix) To Counterparty’s knowledge, no U.S. state or local law, rule, regulation or regulatory order applicable to the Shares would give rise to any reporting, consent, registration or
other requirement (including without limitation a requirement to obtain prior approval from any person or entity) as a result of Dealer or its affiliates owning or holding (however defined) Shares; provided
that no such representation shall be made by Counterparty with respect to any rules and regulations applicable to Dealer (including any rules and regulations of the Financial Industry Regulatory Authority, Inc.) arising from Dealer’s status as a
regulated entity under applicable law.
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(x) Counterparty (A) is capable of evaluating investment risks independently, both in general and with regard to all transactions and investment strategies involving a security or
securities; (B) will exercise independent judgment in evaluating the recommendations of any broker-dealer or its associated persons, unless it has otherwise notified the broker-dealer in writing; and (C) has total assets of at least USD 50 million as
of the date hereof.
(b) Each of Dealer and Counterparty agrees and represents that it is an “eligible contract participant” as defined in Section 1a(18) of the U.S. Commodity Exchange Act, as amended.
(c) Each of Dealer and Counterparty acknowledges that the offer and sale of the Transaction to it is intended to be exempt from registration under the Securities Act, by virtue of Section 4(a)(2)
thereof. Accordingly, Counterparty represents and warrants to Dealer that (i) it has the financial ability to bear the economic risk of its investment in the Transaction and is able to bear a total loss of its investment and its investments in and
liabilities in respect of the Transaction, which it understands are not readily marketable, are not disproportionate to its net worth, and it is able to bear any loss in connection with the Transaction, including the loss of its entire investment in
the Transaction, (ii) it is an “accredited investor” as that term is defined in Regulation D as promulgated under the Securities Act, (iii) it is entering into the Transaction for its own account and without a view to the distribution or resale
thereof, (iv) the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act and is restricted under this Confirmation, the Securities Act and state securities laws, and (v) its
financial condition is such that it has no need for liquidity with respect to its investment in the Transaction and no need to dispose of any portion thereof to satisfy any existing or contemplated undertaking or indebtedness and is capable of
assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.
(d) Each of Dealer and Counterparty agrees and acknowledges that Dealer is a “financial institution,” “swap participant” and “financial participant” within the meaning of Sections 101(22), 101(53C) and
101(22A) of the Bankruptcy Code. The parties hereto further agree and acknowledge (A) that this Confirmation is (i) a “securities contract,” as such term is defined in Section 741(7) of the Bankruptcy Code, with respect to which each payment and
delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment” within the meaning of Section 546 of the
Bankruptcy Code, and (ii) a “swap agreement,” as such term is defined in Section 101(53B) of the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other
transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer” within the meaning of Section 546 of the Bankruptcy Code, and (B) that Dealer is entitled to the protections afforded by, among other sections, Sections
362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 548(d)(2), 555, 560 and 561 of the Bankruptcy Code.
(e) As a condition to the effectiveness of the Transaction, Counterparty shall deliver to Dealer an opinion of counsel, dated as of the Effective Date and reasonably acceptable to Dealer in form and
substance, with respect to the matters set forth in Section 3(a) of the Agreement and Section 7(a)(vii) hereof; provided that any such opinion of counsel may contain customary
exceptions and qualifications, including, without limitation, exceptions and qualifications relating to indemnification provisions.
(f) Counterparty understands that notwithstanding any other relationship between Counterparty and Dealer and its affiliates, in connection with the Transaction and any other over-the-counter derivative
transactions between Counterparty and Dealer or its affiliates, Dealer or its affiliates is acting as principal and is not a fiduciary or advisor in respect of any such transaction, including any entry, exercise, amendment, unwind or termination
thereof.
(g) [Each party acknowledges and agrees to be bound by the Conduct Rules of the Financial Industry Regulatory Authority, Inc. applicable to transactions in options, and further agrees not to violate the
position and exercise limits set forth therein.
(h) Counterparty represents and warrants that it has received, read and understands the OTC Options Risk Disclosure Statement and a copy of the most recent disclosure pamphlet prepared by The Options
Clearing Corporation entitled “Characteristics and Risks of Standardized Options”.]
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8. Other Provisions:
(a) Right to Extend. Dealer may divide any Component into additional Components and designate the Expiration Date and the Number of Options for each such
Component if Dealer determines, in good faith and a commercially reasonable manner, that such further division would be necessary or advisable to preserve a commercially reasonable dealer’s hedging or hedge unwind activity with respect to the
Transaction in light of existing liquidity conditions or to enable such a dealer to purchase or sell Shares or enter into swap or other derivatives transactions with respect to Shares in connection with its commercially reasonable hedging, hedge
unwind or settlement activity with respect to the Transaction in a manner that would, if such dealer were Counterparty or an affiliated purchaser of Counterparty, be compliant and consistent with applicable legal, regulatory or self-regulatory
requirements generally applicable to transactions of the type of the Transaction, or with related policies and procedures adopted by Dealer in good faith so long as such policies and procedures are generally applicable in similar situations and
applied in a non-discriminatory manner; provided that in no event shall any Expiration Date for any Component be postponed to a date later than the Final Termination Date.
(b) Additional Termination Events. Promptly (but in any event within ten Scheduled Trading Days) following any repurchase, redemption, exchange or
conversion of any of Counterparty’s 0.00% Convertible Senior Notes due 2030 (the “Convertible Notes”) issued pursuant to Counterparty’s indenture (the “Indenture”) to be
dated August 19, 2026 between Counterparty and U.S. Bank Trust Company, National Association, as trustee, Counterparty may notify Dealer in writing of (i) such repurchase, redemption, exchange or conversion, (ii) the number of Convertible Notes so
repurchased, redeemed or converted, (iii) the number of Shares underlying each USD 1,000 principal amount of Convertible Notes and (iv) the number of Options as to which Counterparty elects to exercise its termination rights under this Section 8(b)
(any such notice, a “Repurchase Notification” and any such event, a “Repurchase Event”). Notwithstanding anything to the contrary in this Confirmation, the receipt by
Dealer from Counterparty of (x) any Repurchase Notification, within the applicable time period set forth in the preceding sentence, (y) a written representation and warranty by Counterparty that, as of the date of such Repurchase Notification,
Counterparty is not in possession of any material non-public information regarding Counterparty or the Shares, and (z) a written representation and warranty by Counterparty that the aggregate Repurchase Options, together with any options being
terminated concurrently under other capped call transactions entered into in connection with the issuance of the Convertible Notes, will not exceed the number of Shares underlying the Convertible Notes specified in such Repurchase Notification divided by the Option Entitlement, shall constitute an Additional Termination Event as provided in this paragraph. Upon receipt of any such Repurchase Notification and the related written representations and
warranties, Dealer shall promptly designate an Exchange Business Day following receipt of such Repurchase Notification as an Early Termination Date with respect to the portion of this Transaction corresponding to a number of Options (the “Repurchase Options”) equal to the lesser of (A) the number of Options specified in such Repurchase Notification and (B) the aggregate Number of Options as of the date Dealer designates such Early Termination Date
and, as of such date, the aggregate Number of Options shall be reduced by the number of Repurchase Options on a pro rata basis across all Components, as determined by the Calculation Agent. Any payment hereunder with respect to such termination shall
be calculated pursuant to Section 6 of the Agreement as if (1) an Early Termination Date had been designated in respect of a Transaction having terms identical to this Transaction and an aggregate Number of Options equal to the number of Repurchase
Options, (2) Counterparty were the sole Affected Party with respect to such Additional Termination Event and (3) the terminated portion of the Transaction were the sole Affected Transaction.
(c) Alternative Calculations and Payment on Early Termination and on Certain Extraordinary Events. If (a) an Early Termination Date (whether as a result
of an Event of Default or a Termination Event) occurs or is designated with respect to the Transaction or (b) the Transaction is cancelled or terminated upon the occurrence of an Extraordinary Event (except as a result of (i) a Nationalization,
Insolvency or Merger Event in which the consideration to be paid to all holders of Shares consists solely of cash, (ii) a Merger Event or Tender Offer that is within Counterparty’s control, or (iii) an Event of Default in which Counterparty is the
Defaulting Party or a Termination Event in which Counterparty is the Affected Party, which Event of Default or Termination Event resulted from an event or events within Counterparty’s control), and if Dealer would owe any amount to Counterparty
pursuant to Section 6(d)(ii) and 6(e) of the Agreement or any Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “Payment Obligation”), then
Dealer shall satisfy the Payment Obligation by the Share Termination Alternative (as defined below) unless (a) Counterparty gives irrevocable telephonic notice to Dealer, confirmed in writing within one Scheduled Trading Day, no later than 12:00 p.m.
(New York City time) on the Merger Date, Tender Offer Date, Announcement Date (in the case of a Nationalization, Insolvency or Delisting), Early Termination Date or date of cancellation, as applicable, of its election that the Share Termination
Alternative shall not apply, (b) as of the date of such election, Counterparty represents that it is not in possession of any material non-public information regarding Counterparty or the Shares, and that such election is being made in good faith and
not as part of a plan or scheme to evade compliance with the federal securities laws, and (c) Dealer agrees, in its commercially reasonable discretion, to such election, in which case the provisions of Section 12.7 or Section 12.9 of the Equity
Definitions, or the provisions of Section 6(d)(ii) and 6(e) of the Agreement, as the case may be, shall apply.
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Share Termination Alternative:
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If applicable, Dealer shall deliver to Counterparty the Share Termination Delivery Property on, or within a commercially reasonable period of time after, the date when the relevant Payment Obligation would otherwise be due pursuant to
Section 12.7 or 12.9 of the Equity Definitions or Section 6(d)(ii) and 6(e) of the Agreement, as applicable, in satisfaction of such Payment Obligation in the manner reasonably requested by Counterparty free of payment.
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Share Termination Delivery Property:
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A number of Share Termination Delivery Units, as calculated by the Calculation Agent in a commercially reasonable manner, equal to the Payment Obligation divided by the Share Termination Unit
Price. The Calculation Agent shall, in a commercially reasonable manner, adjust the Share Termination Delivery Property by replacing any fractional portion of a security therein with an amount of cash equal to the value of such fractional
security based on the values used to calculate the Share Termination Unit Price.
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Share Termination Unit Price:
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The value of property contained in one Share Termination Delivery Unit, as determined by the Calculation Agent in its discretion by commercially reasonable means and notified by the Calculation Agent to Dealer at the time of notification
of the Payment Obligation. For the avoidance of doubt, the parties agree that in determining the Share Termination Delivery Unit Price the Calculation Agent may consider a variety of factors, including the market price of the Share
Termination Delivery Units and/or the purchase price paid in connection with the commercially reasonable purchase of Share Termination Delivery Property.
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Share Termination Delivery Unit:
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One Share or, if the Shares have changed into cash or any other property or the right to receive cash or any other property as the result of a Nationalization, Insolvency or Merger Event (any such cash or other property, the “Exchange
Property”), a unit consisting of the type and amount of such Exchange Property received by a holder of one Share (without consideration of any requirement to pay cash or other consideration in lieu of fractional amounts of any securities) in
such Nationalization, Insolvency or Merger Event, as determined by the Calculation Agent.
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Failure to Deliver:
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Applicable
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Other Applicable Provisions:
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If Share Termination Alternative is applicable, the provisions of Sections 9.8, 9.9 and 9.11 (as modified above) of the Equity Definitions and the provisions set forth opposite the caption “Representation and Agreement” in Section 2 will
be applicable, except that all references in such provisions to “Physically-settled” shall be read as references to “Share Termination Settled” and all references to “Shares” shall be read as references to “Share Termination Delivery Units”.
“Share Termination Settled” in relation to the Transaction means that the Share Termination Alternative is applicable to the Transaction.
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(d) Disposition of Hedge Shares. Counterparty hereby agrees that if, in the good faith
reasonable judgment of Dealer, based on the advice of legal counsel, the Shares acquired by Dealer for the purpose of effecting a commercially reasonable hedge of its obligations pursuant to the Transaction (the “Hedge Shares”) cannot be sold in the U.S. public market by Dealer without registration under
the Securities Act, Counterparty shall, at its election: (i) in order to allow Dealer to sell the Hedge Shares in a registered offering, make available to Dealer an effective
registration statement under the Securities Act to cover the resale of such Hedge Shares and (A) enter into an agreement, in form and substance reasonably satisfactory to Dealer, substantially in the form of an underwriting agreement for a
registered offering for companies of a similar size in a similar industry, (B) provide accountant’s “comfort” letters in customary form for registered offerings of equity securities for companies of a similar size in a similar industry, (C) provide
disclosure opinions of nationally recognized outside counsel to Counterparty in customary form for registered offerings of equity securities for companies of a similar size in a similar industry, (D) provide other customary opinions, certificates
and closing documents customary in form for registered offerings of equity securities for companies of a similar size in a similar industry and (E) afford Dealer a reasonable opportunity to conduct a “due diligence” investigation with respect to
Counterparty customary in scope for underwritten offerings of equity securities for companies of a similar size in a similar industry; provided, however,
that, if Counterparty elects clause (i) above but Dealer, in its sole reasonable discretion, is not satisfied with access to due diligence materials, the results of its due diligence investigation, or the procedures and documentation for the
registered offering referred to above, then clause (ii) or clause (iii) of this Section 8(d) shall apply at the election of Counterparty; provided that Dealer has given Counterparty reasonable notice of its determination and provided Counterparty with reasonable opportunity to satisfy Dealer’s concerns; (ii) in order to allow Dealer to
sell the Hedge Shares in a private placement, enter into a private placement agreement substantially similar to private placement purchase agreements customary for private placements of equity securities of companies of a similar size in a similar
industry, in form and substance commercially reasonably satisfactory to Dealer using reasonable best efforts to include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Dealer, due
diligence rights (for Dealer or any designated buyer of the Hedge Shares from Dealer), opinions and certificates and such other documentation as is customary for private placements agreements of equity securities of companies of a similar size in a
similar industry, as is reasonably acceptable to Dealer (in which case, the Calculation Agent shall make any adjustments to the terms of the Transaction that are necessary, in its good faith and commercially reasonable judgment, to compensate
Dealer for any customary liquidity discount from the public market price of the Shares incurred on the sale of Hedge Shares in a private placement); provided that no “comfort letter” or accountants’ consent shall be required to be delivered in connection with any private placements; or (iii) purchase the Hedge Shares from Dealer at the then-prevailing market price at one or more times on such
Exchange Business Days, and in the amounts, requested by Dealer.
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(e) Repurchase Notices. Counterparty shall, at least one Scheduled Valid Day prior to any day on which Counterparty intends to effect any repurchase of
Shares, give Dealer written notice of such repurchase (a “Repurchase Notice”) on such day if, following such repurchase, the Notice Percentage would reasonably be expected to be (i) greater than 4.23% and (ii)
greater by 0.5% than the Notice Percentage included in the immediately preceding Repurchase Notice (or, in the case of the first such Repurchase Notice, greater than the Notice Percentage as of the date hereof); provided
that, in the case of any repurchases of Shares pursuant to a plan under Rule 10b5-1 under the Exchange Act, Counterparty may elect to satisfy such requirement by promptly providing Dealer with advance written notice on or prior to any such day of
entry into such plan, the maximum number of Shares that may be purchased thereunder and the approximate dates or periods during which such purchases may occur (with such maximum number of Shares deemed repurchased on the date of such notice for
purposes of this Section 8(e)), in each case so long as such advance written notice shall not contain any material non-public information with respect to the Issuer or the Shares. The “Notice Percentage” as of
any day is the fraction, expressed as a percentage, the numerator of which is the aggregate Number of Shares, plus the aggregate number of Shares underlying any other call options sold by Dealer to
Counterparty and the denominator of which is the number of Shares outstanding on such day. In the event that Counterparty fails to provide Dealer with a Repurchase Notice on the day and in the manner specified in this Section 8(e) then Counterparty
agrees to indemnify and hold harmless Dealer, its affiliates and their respective directors, officers, employees, agents and controlling persons (Dealer and each such person being an “Indemnified Party”) from
and against any and all commercially reasonable losses (including direct losses relating to Dealer’s commercially reasonable hedging activities as a consequence of becoming, or of the risk of becoming, a Section 16 “insider,” including without
limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages and liabilities (or actions in respect thereof), joint or several, to
which such Indemnified Party may become subject under applicable securities laws, including without limitation, Section 16 of the Exchange Act or under any U.S. state or federal law, regulation or regulatory order, in each case relating to or arising
out of such failure. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the
amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition, Counterparty will reimburse any Indemnified Party for all commercially reasonable expenses (including commercially reasonable outside
counsel fees and expenses) as they are incurred (after notice to Counterparty) in connection with the investigation of, preparation for or defense or settlement of any pending or threatened claim or any action, suit or proceeding arising therefrom,
whether or not such Indemnified Party is a party thereto and whether or not such claim, action, suit or proceeding is initiated or brought by or on behalf of Counterparty, in each case relating to or arising out of such failure. Counterparty shall
be relieved from liability under this Section 8(e) to the extent that the Indemnified Party fails promptly to notify Counterparty of any action commenced against it in respect of which indemnity may be sought hereunder (it being understood that any
such notice delivered within 30 calendar days of the commencement of any such action shall be deemed to have been delivered promptly for such purpose), if and to the extent that Counterparty is materially prejudiced by such delayed notification. This
indemnity shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and delegation of the Transaction made pursuant to this Confirmation or the Agreement and shall inure to the benefit of any permitted
assignee of Dealer. Counterparty will not be liable under this indemnity provision to the extent any loss, claim, damage, liability or expense is conclusively found in a final and non-appealable judgment by a court of competent jurisdiction to have
resulted from Dealer’s gross negligence or willful misconduct.
(f) Transfer and Assignment. Either party may transfer or assign any of its rights or obligations under the Transaction with the prior written consent of
the non-transferring party, such consent not to be unreasonably withheld or delayed; provided that Dealer may transfer or assign its rights and obligations hereunder, in whole or in part, without
Counterparty’s consent, to any affiliate of Dealer (a “Designated Transferee”) (A) whose obligations would be guaranteed by Dealer or Dealer’s ultimate parent or (B) that has, or whose obligations would be
guaranteed by a person with, in either case under this clause (B), a rating for its long-term, unsecured and unsubordinated indebtedness at least equivalent to Dealer’s (or its guarantor’s) at the time of such transfer or assignment, provided, however, that, in the case of this clause (B), in no event shall the credit rating of the Designated Transferee or of its guarantor (whichever is higher) be lower
than A3 from Moody’s Investors Service, Inc. or its successor or A- from S&P Global Ratings, a division of S&P Global Inc., or its successor; provided further that (i) Dealer will notify Counterparty
in writing prior to or promptly after any proposed transfer or assignment to a Designated Transferee, (ii) after any such transfer or assignment, Counterparty will not, (x) as a result of any withholding or deduction made by the transferee or
assignee as a result of any tax, receive from such transferee or assignee on any payment date or delivery date (after accounting for amounts paid under Section 2(d)(i)(4) of the Agreement as well as such withholding or deduction from the payment or
delivery) an amount or a number of Shares, as applicable, lower than the amount or the number of Shares, as applicable, that Counterparty would have received in the absence of such transfer or assignment or (y) be required to pay or deliver to the
transferee or assignee on any payment date an amount or number of Shares under Section 2(d)(i)(4) of the Agreement greater than an amount or number of Shares that Counterparty would have been required to pay or deliver to Dealer in the absence of
such transfer or assignment (except, in each case of clause (x) and (y), to the extent such lower or greater amount, as applicable, results from a change in law occurring after the date of such transfer or assignment), and (iii) Dealer shall cause
the transferee or assignee to make the Payee Tax Representations and provide Counterparty with a complete and accurate U.S. Internal Revenue Service Form W-9 or W-8 (as applicable), and any other tax documentation as may be reasonably requested by
Counterparty, prior to becoming a party to the Transaction to permit Counterparty to determine that results described in clause (ii) will not occur upon or after such transfer or assignment. At any time at which (1) the Equity Percentage exceeds 8.0%
or (2) Dealer, Dealer Group (as defined below) or any person whose ownership position would be aggregated with that of Dealer or Dealer Group (Dealer, Dealer Group or any such person, a “Dealer Person”) under
any applicable “business combinations statute” or other federal, state or local law, rule, regulation or regulatory order or organizational documents or contracts of Counterparty applicable to ownership of Shares (“Applicable
Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership in excess of a number of Shares equal to (x) the number of Shares that would give rise to
reporting, registration, filing or notification obligations or other requirements or adverse consequences (including obtaining prior approval by a state or federal regulator) of a Dealer Person under Applicable Restrictions and with respect to which
such requirements have not been met or the relevant approval has not been received, or could result in an adverse effect on a Dealer Person, under any Applicable Restriction, as determined by Dealer in its reasonable discretion minus (y) 1% of the number of Shares outstanding on the date of determination (either such condition described in clause (1) or (2), an “Excess Ownership Position”), if
Dealer, in its commercially reasonable discretion, is unable to effect a transfer or assignment to a third party in accordance with the requirements set forth above after its commercially reasonable efforts on pricing and terms and within a time
period reasonably acceptable to Dealer such that an Excess Ownership Position no longer exists, Dealer may designate any Scheduled Valid Day as an Early Termination Date with respect to a portion (the “Terminated
Portion”) of the Transaction, such that an Excess Ownership Position no longer exists following such partial termination. In the event that Dealer so designates an Early Termination Date with respect to a portion of the Transaction, a
payment or delivery shall be made pursuant to Section 6 of the Agreement and Section 8(c) of this Confirmation as if (i) an Early Termination Date had been designated in respect of a Transaction having terms identical to the Terminated Portion of the
Transaction, (ii) Counterparty were the sole Affected Party with respect to such partial termination, (iii) such portion of the Transaction were the only Terminated Transaction and (iv) Dealer were the party entitled to designate an Early Termination
Date pursuant to Section 6(b) of the Agreement and to determine the amount payable pursuant to Section 6(e) of the Agreement. The “Equity Percentage” as of any day is the fraction, expressed as a percentage,
(A) the numerator of which is the number of Shares that Dealer and any of its affiliates or any other person subject to aggregation with Dealer for purposes of the “beneficial ownership” test under Section 13 of the Exchange Act, or any “group”
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which Dealer is or may be deemed to be a part (collectively, “Dealer Group”) “beneficially owns” (within the meaning of Section 13 of the
Exchange Act), without duplication, on such day (or, to the extent that for any reason the equivalent calculation under Section 16 of the Exchange Act and the rules and regulations thereunder results in a higher number, such higher number) and (B)
the denominator of which is the number of Shares outstanding on such day.
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In the case of a transfer or assignment by Counterparty of its rights and obligations hereunder and under the Agreement, in whole or in part (any such Options so transferred or assigned, the “Transfer Options”), to any party, withholding of such consent by Dealer shall not be considered unreasonable if such transfer or assignment does not meet the reasonable conditions that Dealer may impose including,
but not limited, to the following conditions:
(A) with respect to any Transfer Options, Counterparty shall not be released from its notice and indemnification obligations pursuant to Section 8(e) or any obligations under Section 2
(regarding Extraordinary Events) or 8(d) of this Confirmation;
(B) any Transfer Options shall only be transferred or assigned to a third party that is a U.S. person (as defined in the U.S. Internal Revenue Code of 1986, as amended (the “Code”));
(C) such transfer or assignment shall be effected on terms, including any commercially reasonable undertakings by such third party (including, but not limited to, undertakings with
respect to compliance with applicable securities laws in a manner that, in the reasonable judgment of Dealer, will not expose Dealer to material risks under applicable securities laws) and execution of any documentation and delivery of customary
legal opinions with respect to securities laws and other matters by such third party and Counterparty as are reasonably requested and reasonably satisfactory to Dealer;
(D) Dealer will not, as a result of such transfer or assignment, (x) be required to pay or deliver to the transferee or assignee on any payment date or delivery date, as applicable, an
amount or a number of Shares under Section 2(d)(i)(4) of the Agreement greater than an amount or a number of Shares that Dealer would have been required to pay or deliver to Counterparty in the absence of such transfer or assignment or (y) as a
result of any withholding or deduction made by the transferee or assignee as a result of any tax receive from the transferee or assignee on any payment date (after accounting for amounts paid under Section 2(d)(i)(4) of the Agreement as well as such
withholding or deduction from the payment) an amount or a number of Shares lower than the amount or number of Shares that Dealer would have received in the absence of such transfer or assignment (except, in each case of clause (x) and (y), to the
extent such lower or greater amount or number of Shares, as applicable, results from a change in law occurring after the date of such transfer or assignment);
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(E) an Event of Default, Potential Event of Default or Termination Event will not occur as a result of such transfer or assignment;
(F) without limiting the generality of clause (B), Counterparty shall have caused the transferee or assignee to make such Payee Tax Representations and to provide a properly executed
IRS Form W-9 and any such tax documentation as may be reasonably requested by Dealer to permit Dealer to determine that results described in clause (D) will not occur upon or after such transfer or assignment; and
(G) Counterparty shall be responsible for all commercially reasonable costs and expenses, including reasonable counsel fees, incurred by Dealer in connection with such transfer or
assignment.
Notwithstanding any other provision in this Confirmation to the contrary requiring or allowing Dealer to purchase, sell, receive or deliver any Shares or other securities, or make or receive any payment
in cash, to or from Counterparty, Dealer may designate any of its affiliates to purchase, sell, receive or deliver such Shares or other securities, or to make or receive such payment in cash, and otherwise to perform Dealer’s obligations in respect
of the Transaction and any such designee may assume such obligations. For the avoidance of doubt, the representations and covenants with respect to Sections 8(u) and 8(v)(ii) shall remain unaffected by such designation. Dealer shall be discharged of
its obligations to Counterparty to the extent of any such performance.
(g) Staggered Settlement. If Dealer determines reasonably and in good faith based on the reasonable advice of counsel (a) with respect to applicable legal
and regulatory requirements, including any requirements relating to Dealer’s commercially reasonable hedging activities hereunder, that it would not be practicable or advisable to deliver, or to acquire Shares to deliver, any or all of the Shares to
be delivered by Dealer on the Settlement Date or (b) that the number of Shares required to be delivered to Counterparty hereunder on the Settlement Date would result in an Excess Ownership Position, then Dealer may, by notice to Counterparty prior to
the Settlement Date (a “Nominal Settlement Date”), elect to deliver any Shares due to be delivered on two or more dates (each, a “Staggered Settlement Date”) or at two or
more times on the Nominal Settlement Date as follows:
(i) in such notice, Dealer will specify to Counterparty the related Staggered Settlement Dates (each of which will be on or prior to such Nominal Settlement Date) or delivery times and
how it will allocate the Shares it is required to deliver hereunder on the Settlement Date among the Staggered Settlement Dates or delivery times; and
(ii) the aggregate number of Shares that Dealer will deliver to Counterparty hereunder on all such Staggered Settlement Dates and delivery times will equal the number of Shares that
Dealer would otherwise be required to deliver on such Nominal Settlement Date; provided that in no event shall any Staggered Settlement Date be a date later than the Final Termination Date.
(h) Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees,
representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to
Counterparty relating to such tax treatment and tax structure.
(i) No Netting and Set-off. The provisions of Section 2(c) of the Agreement shall not apply to the Transaction. Each party waives any and all rights it
may have to set-off delivery or payment obligations it owes to the other party under the Transaction against any delivery or payment obligations owed to it by the other party, whether arising under the Agreement, under any other agreement between
parties hereto, by operation of law or otherwise.
(j) Equity Rights. Dealer acknowledges and agrees that this Confirmation is not intended to convey to it rights with respect to the Transaction that are
senior to the claims of common stockholders in the event of Counterparty’s bankruptcy. For the avoidance of doubt, the parties agree that the preceding sentence shall not apply at any time other than during Counterparty’s bankruptcy to any claim
arising as a result of a breach by Counterparty of any of its obligations under this Confirmation or the Agreement. For the avoidance of doubt, the parties acknowledge that the obligations of Counterparty under this Confirmation are not secured by
any collateral that would otherwise secure the obligations of Counterparty herein under or pursuant to any other agreement.
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(k) Early Unwind. In the event the sale of any Convertible Notes contemplated by any Subscription Agreement, dated as of August 12, 2026, between
Counterparty and the applicable investor that is party thereto, is not consummated for any reason by 5:00 p.m. (New York City time) on the Premium Payment Date, or such later date as agreed upon by the parties (the Premium Payment Date or such later
date, the “Early Unwind Date”), a corresponding portion of the Transaction (or, if no such sales are consummated, the Transaction) shall automatically terminate (the “Early
Unwind”) on the Early Unwind Date and (i) the Transaction, or the corresponding portion thereof, as the case may be, and all of the respective rights and obligations of Dealer and Counterparty under the Transaction, or the corresponding
portion thereof, as the case may be, shall be cancelled and terminated, and Counterparty shall pay to Dealer an amount in cash equal to the aggregate amount of commercially reasonable costs and expenses relating to the unwinding of Dealer’s
commercially reasonable hedging activities in respect of the Transaction (or the corresponding portion thereof so terminated, as applicable), including commercially reasonable market losses (including, without limitation, any commercially reasonable
private placement liquidity discount) incurred in reselling any Shares purchased by Dealer or its affiliates in connection with such commercially reasonable hedging activities, unless Counterparty agrees to purchase any such Shares at the cost at
which Dealer purchased such Shares, or, at the election of Counterparty, deliver to Dealer Shares with a value equal to such amount, as determined by the Calculation Agent, in which event the parties shall enter into customary and commercially
reasonable documentation relating to the registered or exempt resale of such Shares (provided that the aggregate number of Shares deliverable pursuant to this Section 8(k) shall not exceed twice the Number of
Shares with respect to the Transaction or the terminated portion of the Transaction, as the case may be), and (ii) subject to Counterparty’s obligations as set forth in clause (i), each party shall be released and discharged by the other party from
and agrees not to make any claim against the other party with respect to any obligations or liabilities of the other party arising out of and to be performed in connection with the Transaction, or the portion thereof so terminated, as the case may
be, either prior to or after the Early Unwind Date. Each of Dealer and Counterparty represents and acknowledges to the other that, upon an Early Unwind, subject to Counterparty’s obligations as set forth in the immediately preceding sentence, all
obligations with respect to the Transaction, or the portion thereof so terminated, as the case may be, shall be deemed fully and finally discharged. For the avoidance of doubt, it is intended that, if less than all of the Transaction is terminated
pursuant to this Section 8(k), payments pursuant to this Section 8(k) shall be made solely in respect of the terminated portion of the Transaction.
(l) Wall Street Transparency and Accountability Act. In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA or any regulation under the WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, shall limit or otherwise impair either party’s
otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the Agreement, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event
under this Confirmation, the Equity Definitions incorporated herein, or the Agreement (including, but not limited to, rights arising from Change in Law, Hedging Disruption, an Excess Ownership Position, or Illegality (as defined in the Agreement)).
(m) Amendments to Equity Definitions. The following amendments shall be made to the Equity Definitions:
(i) solely for purposes of applying the Equity Definitions and for purposes of this Confirmation, any reference in the Equity Definitions to a Strike Price shall be deemed to be a
reference to either of the Strike Price or the Cap Price, or both, as appropriate;
(ii) for the purpose of any adjustment under Section 11.2(c) of the Equity Definitions, the first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is
hereby amended to read as follows: “If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction, then following the announcement or occurrence of any Potential Adjustment Event,
the Calculation Agent will determine whether such Potential Adjustment Event has, in the commercially reasonable judgment of the Calculation Agent, a material economic effect on the theoretical value of the relevant Shares or options on the Shares (provided that such event is not based on (x) an observable market, other than the market for Counterparty’s own stock or (y) an observable index, other than an index calculated and measured solely by reference to
Counterparty’s own operations) and, if so, will (i) make appropriate adjustment(s), if any, determined in a commercially reasonable manner, to any one or more of:”, and the portion of such sentence immediately preceding clause (ii) thereof is hereby
amended by deleting the words “diluting or concentrative” and the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity
relative to the relevant Shares)” and replacing such latter phrase with the words “(provided that solely in the case of Sections 11.2(e)(i), (ii)(A) and (iv), no adjustments will be made to account solely for
changes in volatility, expected dividends, stock loan rate, or liquidity relative to the relevant Shares as determined by the Calculation Agent in a commercially reasonable manner, but, for the avoidance of doubt, solely in the case of Sections
11.2(e)(ii)(B) through (D), (iii), (v), (vi) and (vii), adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)”;
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(iii) Section 11.2(a) of the Equity Definitions is hereby amended by (1) deleting the words “in the determination of the Calculation Agent, a diluting or concentrative effect on the
theoretical value of the relevant Shares” and replacing these words with “in the commercially reasonable judgment of the Calculation Agent, a material economic effect on the theoretical value of the Shares or options on such Shares”; and (2) adding
at the end thereof “; provided that such event is not based on (i) an observable market, other than the market for Counterparty’s own stock or (ii) an observable index, other than an index calculated and
measured solely by reference to Counterparty’s own operations”;
(iv) Section 11.2(e)(vii) of the Equity Definitions is hereby amended and restated as follows: “any other corporate event involving the Issuer that in the commercially reasonable
judgment of the Calculation Agent has a material economic effect on the theoretical value of the Shares or options on the Shares; provided that such corporate event involving the Issuer is not based on (a) an
observable market, other than the market for Counterparty’s own stock or (b) an observable index, other than an index calculated and measured solely by reference to Counterparty’s own operations.”;
(v) Section 12.7(b) of the Equity Definitions is hereby amended by deleting the words “(and in any event within five Exchange Business Days) by the parties after” appearing after the
words “agreed promptly” and replacing with the words “by the parties on or prior to”; and
(vi) “Extraordinary Dividend” (as such term is used in the Equity Definitions) means any cash dividend on the Shares.
(n) Governing Law. THE AGREEMENT, THIS CONFIRMATION AND ALL MATTERS ARISING IN CONNECTION WITH THE AGREEMENT AND THIS
CONFIRMATION SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO ITS CHOICE OF LAW DOCTRINE, OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE
PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, THIS CONFIRMATION OR
ANY TRANSACTIONS CONTEMPLATED HEREBY.
(o) Amendment to the Agreement. Section 12(a) of the Agreement is hereby amended by (i) deleting the phrase “or email” in the third line thereof and (ii)
deleting the phrase “or that communication is delivered (or attempted) or received, as applicable, after the close of business on a Local Business Day” in the final clause thereof.
(p) Adjustments. For the avoidance of doubt, whenever the Calculation Agent or Determining Party is called upon to make an adjustment pursuant to the terms
of this Confirmation or the Equity Definitions to take into account the effect of an event, the Calculation Agent or Determining Party shall make such adjustment by reference to the effect of such event on the Hedging Party, assuming that the Hedging
Party maintains a commercially reasonable hedge position.
(q) Delivery or Receipt of Cash. For the avoidance of doubt, other than payment of the Premium by Counterparty, nothing in this Confirmation shall be
interpreted as requiring Counterparty to cash settle the Transaction, except in circumstances where cash settlement is within Counterparty’s control (including, without limitation, where Counterparty elects to deliver or receive cash) or in those
circumstances in which holders of Shares would also receive cash.
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(r) Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, THIS CONFIRMATION OR ANY TRANSACTIONS CONTEMPLATED HEREBY.
(s) Amendment. This Confirmation and the Agreement may not be modified, amended or supplemented, except in a written instrument signed by Counterparty and
Dealer.
(t) Counterparts. This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. Delivery of an executed signature page by electronic transmission (e.g. “pdf” or “tif”), or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or
other applicable law, e.g., www.docusign.com, shall be effective as delivery of a manually executed counterpart hereof.
(u) Tax Forms. For the purpose of Sections 4(a)(i) and (ii) of the Agreement, Counterparty agrees to deliver to Dealer one duly executed and completed
U.S. Internal Revenue Service Form W-9 (or successor thereto) and Dealer agrees to deliver to Counterparty, as applicable, one duly executed and completed U.S. Internal Revenue Service Form W-8 or Form W-9 (or successor thereto). Such forms or
documents shall be delivered upon (i) execution of this Confirmation, (ii) Counterparty or Dealer, as applicable, learning that any such tax form previously provided by it has become obsolete or incorrect, and (iii) reasonable request of the other
party.
(v) Payee Tax Representations.
(i) For the purpose of Section 3(f) of the Agreement, Counterparty makes the representations below:
Counterparty is a corporation for U.S. federal income tax purposes and is organized under the laws of the United States. It is “exempt” within the meaning of Treasury Regulation sections 1.6041-3(p) and
1.6049-4(c) from information reporting on IRS Form 1099 and backup withholding.
(ii) For the purpose of Section 3(f) of the Agreement, Dealer makes the representations below:
Dealer is a [_______________________________________________________________________].
(w) Withholding Tax Imposed on Payments to Non-U.S. Counterparties under the United States Foreign Account Tax Compliance Provisions of the HIRE Act.
“Indemnifiable Tax”, as defined in Section 14 of the Agreement, shall not include any withholding tax imposed or collected pursuant to FATCA (a “FATCA Withholding Tax”). “FATCA” is defined as Sections 1471
through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any
intergovernmental agreement entered into in connection with the implementation of such Sections of the Code. For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the
purposes of Section 2(d) of the Agreement.
(x) Section 871(m). “Indemnifiable Tax”, as defined in Section 14 of the Agreement, shall not include any tax imposed on payments treated as dividends
from sources within the United States under Section 871(m) of the Code or any regulations issued thereunder. For the avoidance of doubt, any such tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of
Section 2(d) of the Agreement.
(y) Agreements and Acknowledgements Regarding Hedging. Counterparty understands, acknowledges and agrees that: (A) at any time on or prior to the final
Expiration Date, Dealer and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to adjust its hedge position with respect to the
Transaction; (B) Dealer and its affiliates also may be active in the market for Shares other than in connection with hedging activities in relation to the Transaction; (C) Dealer shall make its own determination as to whether, when or in what manner
any hedging or market activities in securities of the Issuer shall be conducted and shall do so in a manner that it deems appropriate to hedge its price and market risk with respect to the Relevant Prices; and (D) any market activities of Dealer and
its affiliates with respect to Shares may affect the market price and volatility of Shares, as well as the Relevant Prices, each in a manner that may be adverse to Counterparty.
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(z) [U.S. Resolution Stay Protocol. Insert QFC boilerplate, if applicable.]
[(aa) Dealer Boilerplate. Insert additional Dealer boilerplate, if applicable.]
[Signature Pages Follow]
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Please confirm that the foregoing correctly sets forth the terms of our agreement by sending to us
a letter or telex substantially similar to this facsimile, which letter or telex sets forth the material terms of the Transaction to which this Confirmation relates and indicates your
agreement to those terms.
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Yours faithfully,
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[DEALER]
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By:
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Name:
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Title:
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[Signature Page to Capped Call Confirmation]
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Agreed and Accepted By:
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OPENDOOR TECHNOLOGIES INC.
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By
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Name:
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Title:
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[Signature Page to Capped Call Confirmation]
Annex A
For each Component of the Transaction, the Number of Options and Expiration Date is set forth below.
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Component Number
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Number of Options
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Expiration Date
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1
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July 2, 2030
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2
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July 3, 2030
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3
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July 5, 2030
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4
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July 8, 2030
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5
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July 9, 2030
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6
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July 10, 2030
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7
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July 11, 2030
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8
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July 12, 2030
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9
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July 15, 2030
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10
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July 16, 2030
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11
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July 17, 2030
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12
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July 18, 2030
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13
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July 19, 2030
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14
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July 22, 2030
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15
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July 23, 2030
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16
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July 24, 2030
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17
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July 25, 2030
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18
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July 26, 2030
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19
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July 29, 2030
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20
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July 30, 2030
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21
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July 31, 2030
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22
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August 1, 2030
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23
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August 2, 2030
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24
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August 5, 2030
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25
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August 6, 2030
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26
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August 7, 2030
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27
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August 8, 2030
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28
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August 9, 2030
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29
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August 12, 2030
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30
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August 13, 2030
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Annex A
Exhibit 99.1
Opendoor Reduces Shares Outstanding by 5% in First-Ever Share Buyback, and Raises $440 Million of Growth Capital at 0% Coupon
$650 million of 0% coupon convertible notes, concurrent $158 million share repurchase, and capped call transactions, all
structured for no expected net share issuance until stock exceeds $10.38 per share, ~3x the current price
SAN FRANCISCO, August 13, 2026 (GLOBE NEWSWIRE) -- Opendoor Technologies Inc. (Nasdaq: OPEN) (the "Company"), a leading e-commerce platform for residential
real estate transactions, today announced a series of transactions whose proceeds will add $440 million of growth capital to the balance sheet at a 0% coupon while reducing shares outstanding by 5%. The combined structure is designed so the Company
expects no net share issuance until our stock exceeds $10.38 per share. Taken together, the Company believes the combined transactions enhance its capital structure, increase
its capacity to fund profitable growth, and are structured to meaningfully limit dilution to existing shareholders.
The transactions consist of a $650 million offering of 0% Convertible Senior Notes due 2030 (the "Notes"), a $158 million repurchase of approximately 45.3
million shares of Opendoor common stock, and capped call transactions designed to reduce any potential dilution. The offering is expected to settle on August 19, 2026, subject to customary closing conditions.
Highlights:
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5% reduction in shares outstanding - the first share repurchase in Company history
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$440 million growth capital at a 0% coupon through 2030
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No expected net share issuance until $10.38 per share (and <5% even at $20 per share)
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Structured to support disciplined expansion of inventory and growth beyond ANI profitability
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"Capital should create value for existing shareholders - not come at their expense. This transaction gives us more than $400 million of growth capital at a
0% coupon, reduces our shares outstanding by 5%, and is structured so we expect no net share issuance until our stock is above $10 per share," said Kaz Nejatian, Chief Executive Officer of Opendoor. "How we finance growth matters as much as the
growth itself."
"Quarter after quarter, we are executing against the promises we made. This capital gives us additional capacity to accelerate acquisitions and footprint
while maintaining the capital discipline that got us here," Nejatian added.
Growth Capital
After using approximately $158 million of the offering proceeds for the share repurchase and approximately $52.5 million to fund the cost of entering into
the capped call transactions, the Company expects to add approximately $440 million of net proceeds (before transaction expenses) to its balance sheet. The Company intends to use these proceeds to support disciplined expansion of home inventory and
its market footprint, deploying additional capital into an operating model that the Company believes is on a clear path to sustained Adjusted Net Income profitability at current acquisition volumes.
The combined transactions are also structured to substantially limit potential dilution to existing shareholders. Assuming the Company elects to settle the
principal amount of the Notes in cash, the capped call transactions are expected to offset potential share dilution from conversion through $6.98 per share. Above $6.98, the 45.3 million shares repurchased as part of the transaction are expected to
offset net share issuance until the stock price exceeds $10.38 per share.
As a result, the combined transaction is expected to result in no net share issuance below approximately $10.38 per share and less than 5% net dilution at a share price of $20.00.
Share Repurchase
The Company intends to repurchase approximately 45.3 million shares of common stock for $158 million, or $3.49 per share, concurrently with the offering.
This is the first share repurchase in the Company's history as a public company. The repurchase represents approximately 5% of the Company's shares outstanding as of July 28, 2026. The repurchase will be funded with proceeds from the offering and was
authorized by the Company's Board of Directors on August 12, 2026.
In addition, J. Wood Capital Advisor LLC (“JWCA”), the placement agent for the offering, will purchase approximately $25 million of shares of the Company’s
common stock, at a discount to the last reported sale price per share of the Company’s common stock on August 12, 2026, concurrently with the offering. Such repurchases by the Company and purchases by JWCA of shares of the Company’s common stock
could increase (or reduce the size of any decrease in) the market price of the Company’s common stock or the Notes.
Terms of the Notes
The Notes will be senior, unsecured obligations of the Company and will not bear regular interest, and the principal amount of the Notes will not accrete.
The Notes will mature on August 15, 2030, unless earlier converted, redeemed or repurchased.
The Notes will have an initial conversion rate of 212.2466 shares of common stock per $1,000 principal amount of Notes, subject to adjustment in certain
circumstances. This is equivalent to an initial conversion price of approximately $4.71 per share and represents a premium of approximately 35% over the last reported sale price of $3.49 per share of the Company's common stock on August 12, 2026.
Because the Company expects to settle the principal amount of converted Notes in cash and has entered into the concurrent share repurchase and capped call
transactions, the initial conversion price of approximately $4.71 should not be viewed as the price at which the combined transaction begins to increase the Company’s net share count.
Before February 15, 2030, the Notes will be convertible at the option of holders only upon satisfaction of certain conditions and during certain
periods, and thereafter at any time until the close of business on the second scheduled trading day immediately before the maturity date. The Company will settle conversions by paying or delivering, as applicable, cash, shares of its common stock, or
a combination of cash and shares, at the Company's election.
The Company may redeem the Notes, in whole or in part, on or after February 22, 2029 if the last reported sale price of the common stock exceeds
130% of the conversion price for a specified period, at a redemption price equal to 100% of principal plus accrued and unpaid interest, if any. The Company may also redeem the Notes in whole if less than $75 million aggregate principal amount remains
outstanding.
Upon the occurrence of a fundamental change (as defined in the indenture governing the Notes), holders may require the Company to repurchase their
Notes for cash at 100% of the principal amount, plus accrued and unpaid interest, if any. The Company will also be required to increase the conversion rate for holders who convert their Notes in connection with certain fundamental changes or a notice
of redemption.
Capped Call Transactions
In connection with the pricing of the Notes, the Company entered into privately negotiated capped call transactions with certain financial institutions
(the "option counterparties"). The capped call transactions are generally expected to reduce potential dilution to the common stock upon conversion of the Notes and/or offset any cash payments the Company is required to make in excess of the
principal amount of converted Notes, with such reduction and/or offset subject to a cap. The cap price of the capped call transactions is initially $6.98 per share, which represents a premium of 100% over the last reported sale price of $3.49 per
share on August 12, 2026, and is subject to certain adjustments.
In connection with establishing their initial hedge positions with respect to the capped call transactions, the option counterparties and/or their
respective affiliates expect to enter into various derivative transactions with respect to the Company's common stock and/or purchase shares of its common stock concurrently with or shortly after the Company's entry into the capped call transactions.
This activity could increase (or reduce the size of any decrease in) the market price of the Company's common stock or the Notes at that time.
The Company used approximately $52.5 million of the net proceeds from the offering to fund the cost of the capped call transactions.
Advisors
JWCA served as placement agent to the Company in connection with the transactions.
Net Share & Dilution Assumptions
The net share and dilution figures in this press release are illustrative estimates, not projections of the Company's future share price or share count. They assume 971.1 million shares of common stock outstanding as of July 28, 2026 with no other change in outstanding shares, that the Company elects to settle the principal amount of converted Notes in cash, that the capped call transactions cover all shares initially underlying the Notes and remain in effect through conversion or maturity, and that neither the conversion rate nor the cap price is adjusted. These figures are not a measure of dilution under GAAP.
The net share and dilution figures in this press release are illustrative estimates, not projections of the Company's future share price or share count. They assume 971.1 million shares of common stock outstanding as of July 28, 2026 with no other change in outstanding shares, that the Company elects to settle the principal amount of converted Notes in cash, that the capped call transactions cover all shares initially underlying the Notes and remain in effect through conversion or maturity, and that neither the conversion rate nor the cap price is adjusted. These figures are not a measure of dilution under GAAP.
Other
The Notes and any shares of common stock issuable upon conversion of the Notes have not been registered under the Securities Act or any state
securities laws, and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements. This press release does not constitute an offer to sell or a solicitation of an offer to buy any
securities, nor shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful.
For additional information regarding the terms of the transactions, please see the Company's Current Report on Form 8-K to be filed with the
Securities and Exchange Commission.
About Opendoor
Opendoor is a leading e-commerce platform for residential real estate transactions whose mission is to power life's progress, one move at a time.
Since 2014, Opendoor has provided people across the U.S. with a simple and certain way to sell and buy a home. Opendoor is a team of problem solvers, innovators, and operators who are leading the future of real estate. Opendoor currently operates in
markets nationwide.
For more information, please visit www.opendoor.com
Forward Looking Statements
This press release contains forward-looking statements within the meaning of Section 27A of the Private Securities Litigation Reform Act of 1995, as
amended. All statements contained in this press release that do not relate to matters of historical fact should be considered forward-looking, including statements regarding the anticipated issuance of the Notes, capped call transactions and share
repurchase, the Company’s expectations regarding the transactions; the anticipated and expected use of proceeds from any proceeds received from the issuance of the Notes; the effect of the transactions on the Company's capitalization or dilution;
and the Company’s potential growth. These forward-looking statements generally are identified by the words “anticipate”, “believe”, “contemplate”, “continue”, “could”, “estimate”, “expect”, “forecast”, “future”, “guidance”, “intend”, “may”,
“might”, “opportunity”, “outlook”, “plan”, “possible”, “potential”, “predict”, “project”, “should”, “strategy”, “strive”, “target”, “vision”, “will”, or “would”, any negative of these words or other similar terms or expressions. The absence of
these words does not mean that a statement is not forward-looking. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject
to risks and uncertainties that can cause actual results to differ materially from those in such forward-looking statements. These risks include, but are not limited to market risks, trends and conditions. You should carefully consider the
foregoing factors and the other risks and uncertainties described under the caption “Risk Factors” in the Company’s most recent Annual Report on Form 10-K filed with the SEC on February 19, 2026, as updated by the Company’s Quarterly Reports on
Form 10-Q and other filings with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements.
Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and, except as required by law, the Company assumes no obligation and does not intend to update or
revise these forward-looking statements, whether as a result of new information, future events, or otherwise. The Company does not give any assurance that it will achieve its expectations.