Exhibit 3.1

 

CERTIFICATE OF INCORPORATION

OF

FLUENCE ENERGY, INC.

 

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

 

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

 

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

 

FOURTH: The total number of shares of all classes of stock that the Corporation shall have authority to issue is 100 shares of common stock, each with a par value of $0.01 per share. The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2) of the DGCL.

 

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

 

NAME	MAILING ADDRESS
Francis A. Fuselier	4601 Fairfax Drive, Suite 600 Arlington, Virginia 22203

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

 

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

 

EXECUTED on June 21, 2021.
	/s/ Francis A Fuselier
	Francis A. Fuselier, Sole Incorporator

 

 

 

Exhibit 3.3

 

Bylaws

of

Fluence Energy, INC.
(a Delaware corporation)

Adopted on June 21, 2021

 

 

TABLE OF CONTENTS

 

Page

 

ARTICLE I. IDENTIFICATION; OFFICES	1
Section 1.     NAME	1
Section 2.     PRINCIPAL AND BUSINESS OFFICES	1
Section 3.     REGISTERED AGENT AND OFFICE	1
Section 4.     CORPORATE RECORDS	1
ARTICLE II. STOCKHOLDERS	1
Section 1.     ANNUAL MEETING	1
Section 2.     SPECIAL MEETING	1
Section 3.     PLACE OF STOCKHOLDER MEETINGS	1
Section 4.     NOTICE OF MEETINGS	2
Section 5.     QUORUM	2
Section 6.     ADJOURNED MEETINGS	2
Section 7.     FIXING OF RECORD DATE	3
Section 8.     VOTING LIST	3
Section 9.     VOTING	4
Section 10.   PROXIES	4
Section 11.   RATIFICATION OF ACTS OF DIRECTORS AND OFFICERS	4
Section 12.   CONDUCT OF MEETINGS	5
Section 13.   ACTION WITHOUT MEETING	5
ARTICLE III. DIRECTORS	6
Section 1.     General Powers	6
Section 2.     NUMBER AND TENURE OF DIRECTORS	6
Section 3.     ELECTION OF DIRECTORS	6
Section 4.     Chairman of the Board; Vice Chairman of the Board	6
Section 5.     QUORUM	7
Section 6.     VOTING	7
Section 7.     VACANCIES	7
Section 8.     REMOVAL OF DIRECTORS	7
Section 9.     Resignation	7
Section 10.   Regular Meetings	7
Section 11.   SPECIAL MEETINGS	8
Section 12.   NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS	8
Section 13.   WRITTEN ACTION BY DIRECTORS	8
Section 14.   PARTICIPATION BY CONFERENCE TELEPHONE	8
Section 15.   COMMITTEES	8
Section 16.   COMPENSATION OF DIRECTORS	9

 

 

ARTICLE IV. OFFICERS	9
Section 1.     GENERAL PROVISIONS	9
Section 2.     ELECTION AND TERM OF OFFICE	9
Section 3.     RESIGNATION AND REMOVAL OF OFFICERS	10
Section 4.     Vacancies	10
Section 5.     THE CHIEF EXECUTIVE OFFICER	10
Section 6.     THE PRESIDENT	10
Section 7.     THE VICE PRESIDENT	11
Section 8.     THE SECRETARY	11
Section 9.     THE ASSISTANT SECRETARY	11
Section 10.   THE TREASURER	11
Section 11.   THE ASSISTANT TREASURER	12
Section 12.   OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS	12
Section 13.   ABSENCE OF OFFICERS	12
Section 14.   COMPENSATION	12
ARTICLE V. CAPITAL STOCK	12
Section 1.     Issuance of Stock	12
Section 2.     CERTIFICATES OF SHARES; UNCERTIFICATED SHARES	12
Section 3.     SIGNATURES OF FORMER OFFICER, TRANSFER AGENT OR REGISTRAR	13
Section 4.     TRANSFER OF SHARES	13
Section 5.     LOST, DESTROYED OR STOLEN CERTIFICATES	14
Section 6.     Regulations	14
ARTICLE VI. RESTRICTIONS ON TRANSFER AND RIGHT OF FIRST REFUSAL.	14
Section 1.     Transfers	14
Section 2.     Consent to Transfer	15
Section 3.     Right of First Refusal	15
Section 4.     Exceptions	16
Section 5.     Termination	17
Section 6.     Void Transfers	17
Section 7.     legends	17
ARTICLE VII. INDEMNIFICATION	18
Section 1.     Right to Indemnification of Directors and Officers	18
Section 2.     Prepayment of Expenses of Directors and Officers	18
Section 3.     Claims by Directors and Officers	18
Section 4.     Indemnification of Employees and Agents	18
Section 5.     Advancement of Expenses of Employees and Agents	19
Section 6.     Non-Exclusivity of Rights	19
Section 7.     Other Indemnification	19
Section 8.      Insurance	19
Section 9.     Amendment or Repeal	19
ARTICLE VIII. DIVIDENDS	19
Section 1.     DECLARATIONS OF DIVIDENDS	19
Section 2.     SPECIAL PURPOSES RESERVES	19

 

 

ARTICLE IX. NOTICE BY ELECTRONIC TRANSMISSION	20
Section 1.     Notice by Electronic Transmission	20
Section 2.     Definition of Electronic Transmission	21
Section 3.     Inapplicability	21
ARTICLE X. GENERAL PROVISIONS	21
Section 1.     FISCAL YEAR	21
Section 2.     SEAL	21
Section 3.     WRITTEN WAIVER OF NOTICE	21
Section 4.     ATTENDANCE AS WAIVER OF NOTICE	21
Section 5.     Waiver of Section 1501	21
Section 6.     CONTRACTS	22
Section 7.     LOANS	22
Section 8.     CHECKS, DRAFTS, ETC.	22
Section 9.     DEPOSITS	22
Section 10.   ANNUAL STATEMENT	22
Section 11.   Voting of Securities	22
Section 12.   Evidence of Authority	22
Section 13.   Certificate of Incorporation	22
Section 14.   Severability	22
Section 15.   Pronouns	22
ARTICLE XI. AMENDMENTS	23
Section 1.   BY THE BOARD OF DIRECTORS	23
Section 2.   BY THE STOCKHOLDERS	23

 

 

ARTICLE I.

IDENTIFICATION; OFFICES

 

Section 1.      NAME. The name of the corporation is Fluence Energy, Inc. (the “Corporation”).

 

Section 2.      PRINCIPAL AND BUSINESS OFFICES. The Corporation may have such principal and other business offices, either within or outside of the state of Delaware, as the Board of Directors may designate or as the Corporation’s business may require from time to time.

 

Section 3.      REGISTERED AGENT AND OFFICE. The Corporation’s registered agent may be changed from time to time by or under the authority of the Board of Directors. The address of the Corporation’s registered agent may change from time to time by or under the authority of the Board of Directors, or the registered agent. The business office of the Corporation’s registered agent shall be identical to the registered office. The Corporation’s registered office may be but need not be identical with the Corporation’s principal office in the state of Delaware. The Corporation’s initial registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.

 

Section 4.      CORPORATE RECORDS. Any records and documents required by law to be kept by the Corporation permanently or administered by the Corporation in the regular course of business may be kept on, or by means of, or be in the form of, any information storage device, method, or one more electronic networks or databases, provided that the records so kept can be converted into clearly legible paper form within a reasonable time and, with respect to the stock ledger, the records so kept comply with Section 224 of the Delaware General Corporation Law. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to applicable law.

 

ARTICLE II.
STOCKHOLDERS

 

Section 1.      ANNUAL MEETING. An annual meeting of the stockholders shall be held on such date as may be designated by the Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President. At each annual meeting, the stockholders shall elect directors to hold office for the term provided in Section 2 of Article III of these Bylaws and transact such other business as may properly be brought before the meeting.

 

Section 2.      SPECIAL MEETING. A special meeting of the stockholders for any purpose or purposes may be called at any time only by the President, the Board of Directors, the Chairman of the Board, the Chief Executive Officer or any other person designated by the Board of Directors. The Board of Directors may postpone or reschedule any previously scheduled special meeting of stockholders. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.

 

Section 3.      PLACE OF STOCKHOLDER MEETINGS. The Board of Directors, the Chairman of the Board, the Chief Executive Officer or the President may designate any place, either within or without the State of Delaware, as the place of meeting for any annual meeting or for any special meeting. If no such place is designated by the Board of Directors, the place of meeting will be the principal business office of the Corporation or the Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but will instead be held solely by means of remote communication as provided under Section 211 of the Delaware General Corporation Law.

 

 

Section 4.      NOTICE OF MEETINGS. Except as otherwise provided by law or waived as herein provided, whenever stockholders are required or permitted to take any action at a meeting, whether annual or special, notice of the meeting shall be given stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders may be deemed to be present in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Such notice shall be given unless otherwise required by law not less than 10 days nor more than 60 days before the date of the meeting to each stockholder entitled to vote at the meeting.

 

When a meeting is adjourned to reconvene at the same or another place, if any, or by means of remote communications, if any, in accordance with Section 6 of Article II of these Bylaws, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken.

 

Section 5.      QUORUM. Unless otherwise provided by law, the Corporation’s Certificate of Incorporation or these Bylaws, the holders of a majority in voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion, or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person, present by means of remote communication in a manner, if any, authorized by the Board of Directors in its sole discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on such matter. If a quorum is present in person or represented by proxy at such meeting, such stockholders may continue to transact business until adjournment, notwithstanding the withdrawal of such number of stockholders as may leave less than a quorum.

 

Section 6.      ADJOURNED MEETINGS. Any meeting of stockholders may be adjourned from time to time to any other time and to any other place (or by means of remote communications, if any) at which a meeting of stockholders may be held under these Bylaws by the chairman of the meeting or by a majority of the stockholders present or represented at the meeting and entitled to vote, although less than a quorum. It shall not be necessary to notify any stockholder of any adjournment of less than 30 days if the time and place, if any, of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, are announced at the meeting at which adjournment is taken, unless after the adjournment a new record date is fixed for the adjourned meeting. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.

 

 

Section 7.      FIXING OF RECORD DATE.

 

(a)          The Board of Directors may fix in advance a date as a record date for the determination of the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof. Such record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 days nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

(b)         For the purpose of determining stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is established by the Board of Directors, and which date shall not be more than 10 days after the date on which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal office, or an officer or agent of the Corporation having custody of the book in which the proceedings of meetings of stockholders are recorded. Delivery to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining stockholders’ consent to corporate action in writing without a meeting shall be the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

(c)          For the purpose of determining the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect to any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix the record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining the stockholders for any such purpose shall be the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

Section 8.      VOTING LIST.  The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least 10 days prior to the meeting, (i) by a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to the stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, such list shall be the only evidence as to the identity of stockholders entitled to examine the list of stockholders required by this Section 8 or to vote in person or by proxy at any meeting of the stockholders. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list.

 

 

Section 9.      VOTING.  Unless otherwise provided by the Certificate of Incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by each stockholder. When a quorum is present at any meeting, in all matters other than the election of directors, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, except when a different vote is required by law, the Certificate of Incorporation or these Bylaws. When a quorum is present at any meeting, directors shall be elected by plurality of the votes of the shares present in person or represented by a proxy at the meeting entitled to vote on the election of directors.

 

Section 10.  PROXIES.  Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting (including by means of remote communications, if any, by which stockholders may be deemed to be present in person and vote at such meeting) may authorize another person or persons to act for him by proxy (executed or transmitted in a manner permitted by the Delaware General Corporation Law), but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may remain irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.

 

Section 11.  RATIFICATION OF ACTS OF DIRECTORS AND OFFICERS.  Except as otherwise provided by law or by the Certificate of Incorporation of the Corporation, any transaction or contract or act of the Corporation or of the directors or the officers of the Corporation may be ratified by the affirmative vote of the holders of the number of shares which would have been necessary to approve such transaction, contract or act at a meeting of stockholders, or by the written consent of stockholders in lieu of a meeting.

 

 

Section 12.     CONDUCT OF MEETINGS.

 

(a)          Chairman of Meeting. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the Chairman’s absence by the Vice Chairman of the Board, if any, or in the Vice Chairman’s absence by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by the President, or in the President’s absence by a Vice President, or in the absence of all of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen by vote of the stockholders at the meeting. The Secretary shall act as secretary of the meeting, but in the Secretary’s absence the chairman of the meeting may appoint any person to act as secretary of the meeting.

 

(b)          Rules, Regulations and Procedures. The Board of Directors may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the Corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting. Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board of Directors, the chairman of any meeting of stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board of Directors or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

Section 13.  ACTION WITHOUT MEETING.

 

(a)          Any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be delivered to the Corporation signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

 

(b)          Prompt notice of the taking of the corporate action without a meeting by less than unanimous consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation.

 

 

(c)          An electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxy holder, or by a person or persons authorized to act for a stockholder or proxy holder, shall be deemed to be written, signed and dated for the purposes of this section, provided that any such electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the electronic transmission was transmitted by the stockholder or proxy holder or by a person or persons authorized to act for the stockholder or proxy holder and (ii) the date on which such stockholder or proxy holder or authorized person or persons transmitted such electronic transmission. A consent given by electronic transmission is delivered to the Corporation upon the earliest of: (i) when the consent enters an information processing system, if any, designated by the Corporation for receiving consents, so long as the electronic transmission is in a form capable of being processed by that system and the Corporation is able to retrieve that electronic transmission; (ii) when a paper reproduction of the consent is delivered to the Corporation’s principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders or members are recorded; (iii) when a paper reproduction of the consent is delivered to the Corporation’s registered office in this State by hand or by certified or registered mail, return receipt requested; or (iv) when delivered in such other manner, if any, provided by resolution of the Board of Directors or governing body of the Corporation. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.

 

ARTICLE III.
DIRECTORS

 

Section 1.       General Powers. The business and affairs of the Corporation shall be managed by or under the direction of a Board of Directors, who may exercise all of the powers of the Corporation except as otherwise provided by law or the Certificate of Incorporation.

 

Section 2.       NUMBER AND TENURE OF DIRECTORS. Subject to the rights of holders of any class or series of capital stock of the Corporation to elect directors, the number of directors of the Corporation shall be determined from time to time by the stockholders or the Board of Directors in a resolution adopted by the Board of Directors. Each director shall hold office until the next annual meeting of stockholders and until such director’s successor is elected and qualified or until such director’s earlier death, resignation or removal.

 

Section 3.      ELECTION OF DIRECTORS. Except as otherwise provided in these Bylaws, directors shall be elected at the annual meeting of stockholders by such stockholders as have the right to vote on such election. Directors need not be residents of the State of Delaware. Directors need not be stockholders of the Corporation. Elections of directors need not be by written ballot.

 

Section 4.      Chairman of the Board; Vice Chairman of the Board. The Board of Directors may appoint from its members a Chairman of the Board and a Vice Chairman of the Board, neither of whom need be an employee or officer of the Corporation. If the Board of Directors appoints a Chairman of the Board, such Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors. If the Board of Directors appoints a Vice Chairman of the Board, such Vice Chairman shall perform such duties and possess such powers as are assigned by the Board of Directors. Unless otherwise provided by the Board of Directors, the Chairman of the Board or, in the Chairman’s absence, the Vice Chairman of the Board, if any, shall preside at all meetings of the Board of Directors.

 

 

Section 5.       QUORUM. The greater of (a) a majority of the directors at any time in office and (b) one-third of the number of directors fixed pursuant to Section 2 of Article III of these Bylaws shall constitute a quorum of the Board of Directors. If less than a quorum are present at a meeting of the Board of Directors, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until such quorum shall be present.

 

Section 6.       VOTING. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the Delaware General Corporation Law or the Certificate of Incorporation requires a vote of a greater number.

 

Section 7.      VACANCIES. Subject to the rights of holders of any series of Preferred Stock to elect directors, unless and until filled by the stockholders, any vacancy or newly-created directorship on the Board of Directors, however occurring, may be filled by vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of such director’s predecessor in office, and a director chosen to fill a position resulting from a newly-created directorship shall hold office until the next annual meeting of stockholders and until a successor is elected and qualified, or until such director’s earlier death, resignation or removal.

 

Section 8.       REMOVAL OF DIRECTORS. Except as otherwise provided by the General Corporation Law of the State of Delaware, a director, or the entire Board of Directors, may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only by vote of the holders of a majority of the outstanding shares of such class or series.

 

Section 9.       Resignation. Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation at its principal office or to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event.

 

Section 10.      Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time, place and manner as shall be determined from time to time by the Board of Directors; provided that any director who is absent when such a determination is made shall be given notice of the determination. A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders.

 

 

Section 11.   SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board, the Chief Executive Officer, the President, two or more directors or by one director in the event that there is only a single director in office. The person or persons authorized to call special meetings of the Board of Directors may fix any time, date or place, either within or without the State of Delaware, for holding any special meeting of the Board of Directors called by them.

 

Section 12.  NOTICE OF SPECIAL MEETINGS OF THE BOARD OF DIRECTORS. Notice of the date, place, if any, and time of any special meeting of the Board of Directors shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (a) in person, by telephone, fax or by electronic transmission at least 24 hours in advance of the meeting, (b) by sending written notice by reputable overnight courier or delivering written notice by hand, to such director’s last known business, home or facsimile address at least 48 hours in advance of the meeting, or (c) by sending written notice by first-class mail to such director’s last known business or home address at least 72 hours in advance of the meeting. A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.

 

Section 13.  WRITTEN ACTION BY DIRECTORS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, or by electronic transmission. Without limiting the manner by which consent may be given, members of the Board of Directors may consent by delivery of an electronic transmission when such transmission is directed to a facsimile number or electronic mail address at which the Corporation has consented to receive such electronic transmissions, and copies of the electronic transmissions are filed with the minutes of proceedings of the Board of Directors or committee. After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board of Directors, or the committee thereof, in the same paper or electronic form as the minutes are maintained.

 

Section 14.  PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board of Directors, or any committee designated by such board, may participate in a meeting of the Board of Directors, or committee thereof, by means of conference telephone or similar communications equipment as long as all persons participating in the meeting can speak with and hear each other, and participation by a director pursuant to this section shall constitute presence in person at such meeting.

 

Section 15.  COMMITTEES. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation with such lawfully delegable powers and duties as the Board of Directors thereby confers, to serve at the pleasure of the Board of Directors. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member at any meeting of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it, but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by law to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the Corporation. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board of Directors. Except as otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board of Directors designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.

 

 

Section 16.  COMPENSATION OF DIRECTORS. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings.

 

ARTICLE IV.
OFFICERS

 

Section 1.      GENERAL PROVISIONS. The officers of the Corporation shall consist of a Chief Executive Officer, a President, a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem appropriate. No officer need be a stockholder. Any two or more offices may be held by the same person. The officers elected by the Board of Directors shall have such duties as are hereafter described and such additional duties as the Board of Directors may from time to time prescribe.

 

Section 2.      ELECTION AND TERM OF OFFICE. The Chief Executive Officer, President, Treasurer and Secretary shall be elected annually by the Board of Directors at the regular meeting of the Board of Directors held after each annual meeting of the stockholders. If the election of officers is not held at such meeting, such election shall be held as soon thereafter as may be convenient. Other officers may be appointed at any time, at a meeting or by the written consent of the Board of Directors. Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until his successor has been duly elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until his earlier death, resignation or removal. Election or appointment of an officer or agent shall not of itself create contract rights.

 

 

Section 3.      RESIGNATION AND REMOVAL OF OFFICERS. Any officer may resign by delivering a written resignation to the Corporation at its principal office or to the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event. Any officer may be removed at any time, with or without cause, by vote of a majority of the directors then in office. Except as the Board of Directors may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer’s resignation or removal, or any right to damages on account of such removal, whether such officer’s compensation be by the month or by the year or otherwise, unless such compensation is expressly provided for in a duly authorized written agreement with the Corporation.

 

Section 4.      Vacancies. The Board of Directors may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled for such period as it may determine any offices other than those of Chief Executive Officer, President, Treasurer and Secretary. Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is elected and qualified, or until such officer’s earlier death, resignation or removal.

 

Section 5.      THE CHIEF EXECUTIVE OFFICER. Unless the Board of Directors has designated another person as the Corporation’s Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The Chief Executive Officer shall have general charge and supervision of the business and affairs of the Corporation subject to the direction of the Board of Directors, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board of Directors. The Chief Executive Officer shall preside at all meetings of the Board of Directors and shall see that orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer may sign bonds, mortgages, certificates for shares and all other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation. The Chief Executive Officer shall have general powers of supervision and shall be the final arbiter of all differences between officers of the Corporation and his decision as to any matter affecting the Corporation shall be final and binding as between the officers of the Corporation subject only to the Board of Directors.

 

Section 6.      THE PRESIDENT. In the absence of the Chief Executive Officer or in the event of his inability or refusal to act, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. At all other times the President shall have the active management of the business of the Corporation under the general supervision of the Chief Executive Officer or the Board of Directors. The President shall have concurrent power with the Chief Executive Officer to sign bonds, mortgages, certificates for shares and other contracts and documents, whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board of Directors, or by these Bylaws to some other officer or agent of the Corporation. In general, the President shall perform all duties incident to the office of president and such other duties as the Chief Executive Officer (if the President is not the Chief Executive Officer) or the Board of Directors may from time to time prescribe.

 

 

Section 7.      THE VICE PRESIDENT. In the absence of the President or in the event of his inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Executive Vice President and then the other Vice President or Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall perform such other duties and have such other powers as the Chief Executive Officer or the Board of Directors may from time to time prescribe.

 

Section 8.      THE SECRETARY. The Secretary shall perform such duties and shall have such powers as the Board of Directors or the Chief Executive Officer may from time to time prescribe. The Secretary shall perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power to attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required and to maintain a stock ledger and prepare lists of stockholders and their addresses as required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the Chief Executive Officer, under whose supervision he shall be. The Secretary shall have custody of the corporate records and the corporate seal of the Corporation and the Secretary, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.

 

Section 9.      THE ASSISTANT SECRETARY. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Chief Executive Officer, the Board of Directors or the Secretary may from time to time prescribe. In the absence of the Secretary or any Assistant Secretary at any meeting of stockholders or directors, the chairman of the meeting shall designate a temporary secretary to keep a record of the meeting.

 

Section 10.  THE TREASURER. The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation, the duty and power to have the custody of the corporate funds and securities and to keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, as required by the Board of Directors, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

 

 

Section 11.  THE ASSISTANT TREASURER. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Chief Executive Officer, the Board of Directors or the Treasurer may from time to time prescribe.

 

Section 12.  OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers, Assistant Officers and Agents, if any, other than those whose duties are provided for in these Bylaws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the Board of Directors.

 

Section 13.  ABSENCE OF OFFICERS, DELEGATION OF AUTHORITY. In the absence of any officer of the Corporation, or for any other reason the Board of Directors may deem sufficient, the Board of Directors may from time to time delegate the powers or duties, or any of such powers or duties, of any officers or officer to any other officer or to any director.

 

Section 14.  COMPENSATION. The Board of Directors shall have the authority to establish reasonable salaries, compensation or reimbursement of all officers for services to the Corporation.

 

ARTICLE V.
CAPITAL STOCK

 

Section 1.      Issuance of Stock. Subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the Corporation or the whole or any part of any shares of the authorized capital stock of the Corporation held in the Corporation’s treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board of Directors in such manner, for such lawful consideration and on such terms as the Board of Directors may determine.

 

Section 2.      CERTIFICATES OF SHARES; UNCERTIFICATED SHARES.

 

(a)          The shares of the Corporation shall be represented by certificates, provided that the Board of Directors of the Corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock represented by certificates shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board of Directors, signed in a manner that complies with Section 158 of the Delaware General Corporation Law, representing the number of shares held by such holder registered in certificate form. Any or all the signatures on the certificate may be a facsimile or pdf.

 

 

(b)           Each certificate for shares of stock which are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws, applicable securities laws or any agreement among any number of stockholders or among such holders and the Corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.

 

(c)          If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests a copy of the full text of the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

(d)          Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law of the State of Delaware or, with respect to Section 151 of the General Corporation Law of the State of Delaware, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

Section 3.      SIGNATURES OF FORMER OFFICER, TRANSFER AGENT OR REGISTRAR. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person or entity were such officer, transfer agent or registrar at the date of issue.

 

Section 4.      TRANSFER OF SHARES. Transfers of shares of the Corporation shall be made only on the books of the Corporation, or by transfer agents designated to transfer shares of the Corporation. Subject to applicable law, shares of stock represented by certificates shall be transferred only on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the Corporation or its transfer agent may reasonably require. Except as may be otherwise required by law, by the Certificate of Incorporation or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.

 

 

Section 5.      LOST, DESTROYED OR STOLEN CERTIFICATES. Whenever a certificate representing shares of the Corporation has been lost, destroyed or stolen, the holder thereof may file in the office of the Corporation an affidavit setting forth, to the best of his knowledge and belief, the time, place, and circumstance of such loss, destruction or theft together with a statement of indemnity and posting of such bond sufficient in the opinion of the Board of Directors to indemnify the Corporation against any claim that may be made against it on account of the alleged loss of any such certificate. Thereupon the Board may cause to be issued to such person or such person’s legal representative a new certificate or a duplicate of the certificate alleged to have been lost, destroyed or stolen. In the exercise of its discretion, the Board of Directors may waive the indemnification and bond requirements provided herein.

 

Section 6.      Regulations. The issue, transfer, conversion and registration of shares of stock of the Corporation shall be governed by such other regulations as the Board of Directors may establish.

 

ARTICLE VI.
RESTRICTIONS ON TRANSFER AND RIGHT OF FIRST REFUSAL.

 

Section 1.      Transfers. If a holder of any shares of stock of the Corporation (a “Holder”) proposes to, directly or indirectly, sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “Transfer”) any such shares, or any right or interest therein (including, without limitation, the entering into of any swap or other arrangement that Transfers to another, in whole or in part, any of the economic consequences of ownership of the common stock of the Corporation, whether any such transaction described above is to be settled by delivery of common stock of the Corporation or other securities, in cash or otherwise), pursuant to a bona fide offer acceptable to such Holder, then Holder shall first give written notice of the proposed Transfer (the “Transfer Notice”) to the Corporation. The Transfer Notice shall state the name of the proposed transferee, the number of shares Holder proposes to Transfer (the “Offered Shares”), whether the Offered Shares are vested or unvested shares, the price per share and all other material terms and conditions of the Transfer, including any available exemption set forth in Section 4 below from the restrictions set forth in Sections 2 and 3 below and shall include a confirmation from the Holder that the proposed transferee is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”).

 

 

Section 2.      Consent to Transfer. Following receipt of the Transfer Notice, the prior written consent of the Corporation (upon duly authorized action of its Board of Directors) shall be required (and such consent may be withheld) if such Transfer (a) would be to an individual, company or any other form of entity identified by the Corporation as a competitor or potential competitor; (b) increases the risk of the Corporation having a class of equity security (other than an exempted security) held of record by either (i) 2,000 or more persons, provided, however, that such restriction shall only apply after the Corporation has a class of equity security (other than an exempted security) held of record by more than 1,000 persons or (ii) 500 or more persons who are not accredited investors, as described in Section 12(g) of the Securities and Exchange Act of 1934 (the “1934 Act”), and Rule 12g5-1 promulgated thereunder, or otherwise requiring the Corporation to register any class of securities under the 1934 Act; (c) would result in the loss of any federal or state securities law exemption relied upon by the Corporation in connection with the initial issuance of such shares or the issuance of any other securities; (d) is facilitated in any manner by any public posting, message board, trading portal, internet site or similar method of communication, including without limitation any trading portal or internet site intended to facilitate secondary transfers of securities; (e) is to be effected in a brokered transaction; (f) represents a Transfer of less than all of the shares then held by the stockholder and its affiliates or is to be made to more than a single transferee or (g) is determined by the Corporation’s Board of Directors to require such consent for any legitimate corporate purpose. The provisions of subsections (f) and (g) of this Section 2 shall not apply to any Transfer of Preferred Stock of the Corporation or the shares of Common Stock issued upon conversion thereof. The Corporation shall notify Holder within 30 days of receipt of the Transfer Notice indicating whether the proposed transfer requires such consent and if so, whether such consent has been provided (a “Transfer Approval”) or withheld (a “Transfer Denial” and together with “Transfer Approval”, the “Transfer Determination”). For purposes of clarity, (i) if the Corporation determines no consent is required for the proposed Transfer, then this determination shall constitute a Transfer Approval and (ii) a Holder shall not be entitled to transfer any shares if such proposed Transfer results in a Transfer Denial. Any Transfer made following a Transfer Determination that results in a Transfer Approval shall be effected pursuant to a transfer agreement in a form reasonably acceptable to the Corporation (which form shall include, without limitation, a release in favor of the Corporation and representations from the Holder and transferee that the Corporation is not a party to the transaction and has made no representations to the transferee).

 

Section 3.      Right of First Refusal.

 

(a)          Subject to the exceptions set forth in Section 3(e) below, for 30 days following a Transfer Determination that results in a Transfer Approval, the Corporation or its assigns shall have the option to purchase all or part of the Offered Shares at the price and upon the terms set forth in the Transfer Notice (the “Right of First Refusal”). In the event the Corporation or its assigns, as applicable, elects to purchase all or part of the Offered Shares, it shall give written notice of such election to the Holder within such 30 day period. Within 10 days after Holder’s receipt of such notice, Holder shall tender to the Corporation at its principal offices the certificate or certificates representing the Offered Shares to be purchased by the Corporation, duly endorsed in blank by Holder or with duly endorsed stock powers attached thereto, all in a form suitable for Transfer of the Offered Shares to the Corporation. Promptly following receipt of such certificate or certificates, the Corporation or its assigns, as applicable, shall deliver or mail to Holder a check in payment of the purchase price for such Offered Shares; provided that if the terms of payment set forth in the Transfer Notice were other than cash against delivery, the Corporation or its assigns, as applicable, may pay for the Offered Shares on the same terms and conditions as were set forth in the Transfer Notice.

 

 

(b)          If the Corporation or its assigns, as applicable, does not elect to acquire any of the Offered Shares, Holder may, within the 30-day period following the expiration of the option granted to the Corporation under Section 3(a) above, Transfer the Offered Shares that the Corporation has not elected to acquire to the proposed transferee, provided that such Transfer shall not be on terms and conditions more favorable to the transferee than those contained in the Transfer Notice, such Transfer shall be only to a prospective transferee that is an accredited investor as defined in Rule 501(a) of Regulation D promulgated under the Securities Act and such Transfer shall comply with the Securities Act. Notwithstanding any of the above, all Offered Shares transferred pursuant to this Section 3 shall remain subject to these Bylaws and any equity grant agreement such Offered Shares were subject to and such transferee shall, as a condition to such Transfer, deliver to the Corporation a written instrument confirming that such transferee shall be bound by all of the terms and conditions of these Bylaws and any applicable equity grant agreement.

 

(c)          After the time at which the Offered Shares are required to be delivered to the Corporation for Transfer to the Corporation pursuant to subsection 3(a) above, the Corporation shall not pay any dividend to Holder on account of such Offered Shares or permit Holder to exercise any of the privileges or rights of a stockholder with respect to such Offered Shares, but shall, insofar as permitted by law, treat the Corporation as the owner of such Offered Shares.

 

(d)         The Corporation may assign its Right of First Refusal in any particular transaction under this Section 3 to one or more persons or entities.

 

(e)         The provisions of this Section 3 shall not apply to any Transfer of Preferred Stock of the Corporation or the shares of Common Stock issued upon conversion thereof.

 

(f)          To the extent the Corporation has entered into any written agreement with the stockholder attempting to Transfer shares that grants the Corporation a right of first refusal with respect thereto (“Separate ROFR Terms”), then such Separate ROFR Terms shall supersede this Section 3 of Article VI and shall control such stockholder’s proposed Transfer of shares following a Transfer Determination that results in a Transfer Approval.

 

Section 4.      Exceptions.

 

(a)          The provisions of this Article VI may be waived with respect to any Transfer upon duly authorized action of its Board of Directors.

 

(b)          The following transactions shall be exempt from the restrictions set forth in Article VI, Section 3:

 

(A)             any Transfer to or for the benefit of (i) any spouse, children, parents, uncles, aunts, siblings or grandchildren of the Holder or any other relatives of the Holder that have been approved by the Board of Directors (collectively, “Approved Relatives”), (ii) a trust established solely for the benefit of the Holder and/or Approved Relatives or (iii) where the Holder is a trust, (x) a trust established solely for the benefit of one or more beneficiaries of the Holder trust and/or Approved Relatives of any such beneficiaries or (y) one or more beneficiaries of the Holder trust and/or Approved Relatives of any such beneficiaries;

 

 

(B)              any Transfer made as part of the sale of all or substantially all of the shares of capital stock of the Corporation (including pursuant to a merger or consolidation);

 

(C)              any Transfer pursuant to an effective registration statement filed by the Corporation under the Securities Act;

 

(D)              a stockholder’s bona fide pledge or mortgage of any Common Stock with a commercial lending institution;

 

(E)              a corporate stockholder’s Transfer of any or all of its shares pursuant to and in accordance with the terms of any merger, consolidation, reclassification of common stock or capital reorganization of the corporate stockholder, or pursuant to a sale of all or substantially all of the stock or assets of a corporate stockholder;

 

(F)               a corporate stockholder’s Transfer of any or all of its shares to any or all of its stockholders; and

 

(G)              a Transfer of any or all of the shares held by a stockholder which is a limited or general partnership to any or all of its partners.

 

(c)          In the case of a Transfer pursuant to Sections 4(b)(A) and (D)-(G) above, such shares shall remain subject to these Bylaws and any existing equity grant agreement and such transferee shall, as a condition to such Transfer, deliver to the Corporation a written instrument confirming that such transferee shall be bound by all of the terms and conditions of these Bylaws and any applicable equity grant agreement and there shall be no further Transfer of such shares except in accordance with these Bylaws.

 

Section 5.      Termination. The provisions of Article VI shall terminate upon the closing of the sale of shares of common stock in an underwritten public offering pursuant to an effective registration statement filed by the Corporation under the Securities Act.

 

Section 6.       Void Transfers. The Corporation shall not be required (a) to Transfer on its books any shares which shall have been sold or otherwise transferred in violation of any of the provisions of this Article VI or (b) to treat as owner of such shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom any such shares shall have been so sold or transferred.

 

Section 7.      legends. The books and records of the Corporation and any certificates representing shares of stock of the Corporation shall contain or bear the following legend so long as the foregoing Transfer restrictions are in effect:

 

THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO (i) TRANSFER RESTRICTIONS AND (ii) A RIGHT OF FIRST REFUSAL OPTION IN FAVOR OF THE CORPORATION AND/OR ITS ASSIGNEE(S), EACH AS PROVIDED IN THE BYLAWS OF THE CORPORATION.

 

 

ARTICLE VII.
INDEMNIFICATION

 

Section 1.      Right to Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person in such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 3 of this Article VII, the Corporation shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board of Directors.

 

Section 2.      Prepayment of Expenses of Directors and Officers. The Corporation shall pay the expenses (including attorneys’ fees) incurred by an Indemnified Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to be indemnified under this Article VII or otherwise.

 

Section 3.      Claims by Directors and Officers. If a claim for indemnification or advancement of expenses under this Article VII is not paid in full within 30 days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

 

Section 4.      Indemnification of Employees and Agents. The Corporation may indemnify and advance expenses to any person who was or is made or is threatened to be made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal representative, is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person in connection with such Proceeding. The ultimate determination of entitlement to indemnification of persons who are non-director or officer employees or agents shall be made in such manner as is determined by the Board of Directors in its sole discretion. Notwithstanding the foregoing sentence, the Corporation shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding was not authorized in advance by the Board of Directors.

 

 

Section 5.      Advancement of Expenses of Employees and Agents. The Corporation may pay the expenses (including attorneys’ fees) incurred by an employee or agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the Board of Directors.

 

Section 6.      Non-Exclusivity of Rights. The rights conferred on any person by this Article VII shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 7.      Other Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise.

 

Section 8.      Insurance. The Board of Directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the provisions of this Article VII; and (b) to indemnify or insure directors, officers and employees against liability in instances in which they may not otherwise be indemnified by the Corporation under the provisions of this Article VII.

 

Section 9.      Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VII shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs, executors and administrators.

 

ARTICLE VIII.
DIVIDENDS

 

Section 1.      DECLARATIONS OF DIVIDENDS. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.

 

Section 2.     SPECIAL PURPOSES RESERVES. The Board of Directors may set apart out of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.

 

 

ARTICLE IX.

NOTICE BY ELECTRONIC TRANSMISSION

 

Section 1.      Notice by Electronic Transmission. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under the Delaware General Corporation Law, the Certificate of Incorporation, or these Bylaws may be given in writing directed to the stockholder’s mailing address (or by electronic transmission directed to the stockholder’s electronic mail address, as applicable) as it appears on the records of the Corporation and shall be given (1) if mailed, when the notice is deposited in the U.S. mail, postage prepaid, (2) if delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address or (3) if given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by Section 3 of this Article. A notice by electronic mail must include a prominent legend that the communication is an important notice regarding the Corporation.

 

Without limiting the manner by which notice otherwise may be given effectively to stockholders, but subject to Section 3 of this Article, any notice to stockholders given by the Corporation under any provision of the Delaware General Corporation Law, the Certificate of Incorporation or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic transmission to the Corporation.

 

Any notice given pursuant to the preceding paragraph shall be deemed given:

 

(a)          if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice;

 

(b)         if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and

 

(c)          if by any other form of electronic transmission, when directed to the stockholder.

 

Notwithstanding the foregoing, a notice may not be given by an electronic transmission from and after the time that (1) the Corporation is unable to deliver by such electronic transmission 2 consecutive notices given by the Corporation and (2) such inability becomes known to the secretary or an assistant secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice, provided, however, the inadvertent failure to discover such inability shall not invalidate any meeting or other action.

 

An affidavit of the secretary or an assistant secretary or of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

 

 

Section 2.      Definition of Electronic Transmission; Electronic mail; electronic mail address. An “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process. An “electronic mail” means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or agent of the Corporation who is available to assist with accessing such files and information). An “electronic mail address” means a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.

 

Section 3.      Inapplicability. Notice by a form of electronic transmission shall not apply to Sections 164, 296, 311, 312 or 324 of the Delaware General Corporation Law.

 

ARTICLE X.
GENERAL PROVISIONS

 

Section 1.      FISCAL YEAR. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

 

Section 2.     SEAL. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware” or such other form as shall be approved by the Board of Directors. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

Section 3.      WRITTEN WAIVER OF NOTICE. A written waiver of any notice required to be given by law, the Certificate of Incorporation or by these Bylaws, signed by or electronically transmitted by the person entitled to notice, whether before, at or after the time of the event for which notice is to be given, shall be deemed equivalent to notice required to be given to such person. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of stockholders, directors or members of a committee of directors need be specified in any written waiver of notice.

 

Section 4.      ATTENDANCE AS WAIVER OF NOTICE. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, and objects, to the transaction of any business because the meeting is not lawfully called or convened.

 

Section 5.      Waiver of Section 1501.

 

To the fullest extent provided by the law, the Corporation shall not be required to cause annual reports to be delivered to its stockholders under Section 1501 of the California General Corporation Law.

 

 

Section 6.      CONTRACTS. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the Corporation, and such authority may be general or confined to specific instances.

 

Section 7.      LOANS. No loans shall be contracted on behalf of the Corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.

 

Section 8.      CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by one or more officers or agents of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.

 

Section 9.       DEPOSITS. The funds of the Corporation may be deposited or invested in such bank account, in such investments or with such other depositaries as determined by the Board of Directors.

 

Section 10.     ANNUAL STATEMENT. The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the Corporation.

 

Section 11.      Voting of Securities. Except as the Board of Directors may otherwise designate, the Chief Executive Officer, the President or the Treasurer may waive notice of, vote, or appoint any person or persons to vote, on behalf of the Corporation at, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this Corporation (with or without power of substitution) at, any meeting of stockholders or securityholders of any other entity, the securities of which may be held by this Corporation.

 

Section 12.      Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.

 

Section 13.      Certificate of Incorporation. All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and in effect from time to time.

 

Section 14.      Severability. Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.

 

Section 15.      Pronouns. All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.

 

 

ARTICLE XI.

AMENDMENTS

 

Section 1.      BY THE BOARD OF DIRECTORS. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation.

 

Section 2.     BY THE STOCKHOLDERS. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted, by the affirmative vote of the holders of a majority of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at any annual meeting of stockholders, or at any special meeting of stockholders, provided notice of such alteration, amendment, repeal or adoption of new Bylaws shall have been stated in the notice of such special meeting. If the power to adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the Certificate of Incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal Bylaws.

 

 

 

 

Exhibit 10.7

 

2020 UNIT OPTION PLAN

OF

FLUENCE ENERGY, LLC

 

Fluence Energy, LLC a Delaware limited liability company (the “Company”), hereby adopts this 2020 Unit Option Plan of Fluence Energy, LLC (the “Plan”), effective as of December 23, 2020. The purposes of the Plan are as follows:

 

(1)            To further the growth, development and financial success of the Company and its Subsidiaries by providing additional incentives to Employees, Consultants and Directors (as such terms are defined below) of the Company and its Subsidiaries thereby enabling them to benefit directly from the growth, development and financial success of the Company and its Subsidiaries.

 

(2)            To enable the Company and its Subsidiaries to obtain and retain the services of the type of professional, technical and managerial Employees, Consultants and Directors considered essential to the long-range success of the Company and its Subsidiaries by providing and offering them an opportunity to become owners of Units through the exercise of Options (as defined herein).

 

ARTICLE I.

DEFINITIONS

 

Whenever the following terms are used in this Plan, they shall have the meaning specified below unless the context clearly indicates to the contrary. The singular pronoun shall include the plural where the context so indicates. Capitalized terms used but not otherwise defined in this Plan shall have the meanings set forth in the Second Amended and Restated Fluence Energy, LLC Limited Liability Company Agreement entered into as of December 29, 2020, as it may be amended from time to time (the “LLC Agreement”).

 

Section 1.1         “Administrator” shall mean the administrator of the Plan as set forth in Section 6.1. For the avoidance of doubt, the Board shall be the administrator of the Plan for all Options granted to Directors.

 

Section 1.2          “Board” shall mean the Board of Directors of the Company. Section 1.3 “Class A-1 Units” shall mean the Class A-1 Units of the Company.

 

Section 1.4          “Code” shall mean the Internal Revenue Code of 1986, as amended.

 

Section 1.5          “Committee” shall mean the Committee appointed as the Administrator of the Plan, if any.

 

Section 1.6          “Company” shall mean Fluence Energy, LLC, a Delaware limited liability company.

 

 

Section 1.7          “Company Event” shall mean, as determined by the Board in its sole discretion, any transaction or event described in Section 7.1(a) or any unusual or nonrecurring transaction or event affecting the Company, any Affiliate of the Company, or the financial statements of the Company or any Affiliate of the Company, or any change in applicable laws, regulations, or accounting principles.

 

Section 1.8          “Consultant” shall mean any consultant or adviser (other than a Director) if: (a) the consultant or adviser renders bona fide services to the Company or a Subsidiary thereof; (b) the services rendered by the consultant or adviser are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for the Company’s securities; and (c) the consultant or adviser is a natural person.

 

Section 1.9          “Director” shall mean any member of the Board.

 

Section 1.10      “ Eligible Representative” for an Optionee shall mean such Optionee’s personal representative or such other person as is empowered under a deceased Optionee’s will or the then-applicable laws of descent and distribution to represent the Optionee hereunder.

 

Section 1.11       “Employee” shall mean any employee (as defined in accordance with the regulations and revenue rulings then applicable under Section 3401(c) of the Code) of the Company or one of its Subsidiaries.

 

Section 1.12        “Equity Restructuring” shall mean a non-reciprocal transaction between the Company and its unitholders, such as a unit dividend, unit split, spin-off, rights offering or recapitalization through a large, nonrecurring cash distribution, that affects the Units (or other securities of the Company) or the value of the Units (or other securities of the Company) and causes a change in the per unit value of the Class A-1 Units underlying outstanding Options.

 

Section 1.13         “Fair Market Value” of a Unit as of a given date shall be:

 

(a)           The closing price of a Unit on the New York Stock Exchange, Nasdaq or such other principal exchange on which such units are then trading, if any (or as reported on any composite index which includes the New York Stock Exchange, Nasdaq or such other principal exchange), on the most recent trading day prior to such determination date on which a sale occurred; or

 

(b)          If Units are not traded on an exchange but are quoted on a quotation system, the mean between the closing representative bid and asked prices for a Unit on the most recent trading day prior to such determination date on which sales prices or bid and asked prices, as applicable, are reported by such quotation system; or

 

(c)           If Units are not publicly traded on an exchange and not quoted on a quotation system, the fair market value of a Unit as determined by the Board in its sole discretion.

 

 

Section 1.14         “Liquidation Event” shall mean unless (i) the Requisite Class A Majority and (ii) the Requisite Class B Majority elect otherwise by written notice sent to the Company at least five (5) Business Days prior to the effective date of any such event:

 

(a)           a merger or consolidation or any similar transaction or series of related similar transactions in which (i) the Company is a constituent party or (ii) a subsidiary of the Company is a constituent party and the Company issues Units pursuant to such merger, consolidation, similar transaction or series of related similar transactions; provided, however, that any merger, consolidation, or similar transaction or series of related similar transactions involving the Company or a subsidiary in which the Units outstanding immediately prior to such merger, consolidation or similar transaction or series of related similar transactions continue to represent, immediately following such transaction or series of related transactions, at least a majority, by voting power of the Equity Securities of (A) the surviving or resulting entity or (B) if the surviving or resulting entity is a wholly-owned subsidiary of another entity immediately following such merger, consolidation or similar transaction or series of transactions, the parent entity of such surviving or resulting entity shall not constitute a Deemed Liquidation Event; or

 

(b)           the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole or (ii) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related transactions) of one (1) or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company.

 

Section 1.15          “Option” shall mean an option granted under the Plan to purchase Class A-1 Units.

 

Section 1.16          “Optionee” shall mean an Employee, Consultant or Director to whom an Option is granted under the Plan.

 

Section 1.17           “Plan” shall mean this 2020 Unit Option Plan of Fluence Energy, LLC, as amended from time to time.

 

Section 1.18           “Principal Unitholders” shall mean (a) AES Grid Stability, LLC, and (b) Siemens Industry, Inc. and their respective Affiliates.

 

Section 1.19          “Rule 16b-3” shall mean Rule 16b-3 promulgated under the Exchange Act, as such Rule may be amended from time to time.

 

Section 1.20         “Termination of Consultancy” shall mean the time when the engagement of an Optionee as a Consultant to the Company or a Subsidiary thereof is terminated for any reason, with or without Cause, including, but not by way of limitation, by resignation, discharge, death or retirement, but excluding a termination where there is a simultaneous commencement of employment with the Company or any Subsidiary thereof and/or the Consultant becomes (or remains) a Director. The Administrator, in its sole discretion, shall determine the effect of all matters and questions relating to Termination of Consultancy.

 

 

Section 1.21         “ Termination of Directorship” shall mean the time when an Optionee who is a Director ceases to be a Director for any reason, including but not by way of limitation, a termination by resignation, failure to be elected or appointed, death or retirement but excluding a termination where there is a simultaneous commencement of employment with the Company or any Subsidiary thereof. The Board, in its sole discretion, shall determine the effect of all matters and questions relating to Termination of a Director.

 

Section 1.22         “Termination of Employment” shall mean the time when the employee-employer relationship between an Optionee and the Company (and its Subsidiaries), is terminated for any reason, with or without Cause, including, but not by way of limitation, a termination by resignation, discharge, death or retirement, but excluding a termination where there is a simultaneous reemployment by the Company or one of its Subsidiaries of the Employee and/or the Employee becomes a Director. The Administrator shall determine the effect of all matters and questions relating to Termination of Employment for purposes of the Plan, including, but not by way of limitation, the question of whether a Termination of Employment resulted from a discharge for Cause for purposes of the Plan, and all questions of whether a particular furlough or leave of absence constitutes a Termination of Employment for purposes of the Plan.

 

Section 1.23          “Termination of Services” shall mean the time of any Termination of Employment, Termination of Consultancy or Termination of Directorship, as applicable, following which an Optionee no longer provides any services to the Company or any Subsidiary thereof as (a) an Employee, (b) a Consultant, or (c) a Director.

 

Section 1.24          “Units” shall mean the Class A-1 Units.

 

Section 1.25          “Unit Option Agreement” shall have the meaning set forth in Section 4.1.

 

ARTICLE II.

UNITS SUBJECT TO PLAN

 

Section 2.1            Units Subject to Plan. The Units subject to Options shall be Class A-1 Units. Subject to Section 7.1, the aggregate number of Class A-1 Units which may be issued upon exercise of Options shall not exceed 1,080,000.

 

Section 2.2            Substitute Awards. In connection with a merger or consolidation of an entity with the Company or the acquisition by the Company of property or stock of an entity, the Administrator may grant Options in substitution for any options granted prior to such merger or consolidation by such entity or an affiliate thereof. Substitute awards may be granted on such terms as the Administrator deems appropriate in the circumstances, notwithstanding any limitations on Options contained in the Plan. Substitute awards shall not count against the overall unit limit set forth in Section 2.1 hereof.

 

Section 2.3            Unexercised Options. If any Option (or portion thereof) expires or is canceled without having been fully exercised, the number of Class A-1 Units subject to such Option (or portion thereof) that so expires or is so cancelled without having been fully exercised shall not be counted against the maximum set forth in Section 2.1 and shall again be available for grant.

 

 

ARTICLE III.

GRANTING OF OPTIONS

 

Section 3.1             Eligibility. Any (a) Employee; (b) Consultant; or (c) Director shall be eligible to be granted Options.

 

Section 3.2             Granting of Options to Employees and Consultants

 

(a)            The Administrator shall from time to time:

 

(i)           Select the Employees, Consultants and Directors (including those to whom Options have been previously granted under the Plan) that are eligible to receive Options;

 

(ii)           Determine the number of Class A-1 Units to be subject to such Options granted to such Employees and Consultants; and

 

(iii)          Determine the terms and conditions of such Options, consistent with the Plan.

 

(b)           Upon the selection of an Employee, Consultant or Director to be granted an Option pursuant to Section 3.2(a), the Administrator shall instruct the corporate secretary or another authorized Officer of the Company to issue such Option and may impose such conditions on the grant of such Option as it deems appropriate.

 

ARTICLE IV.

TERMS OF OPTIONS

 

Section 4.1            Unit Option Agreement. Each Option shall be evidenced by a written unit option agreement (“Unit Option Agreement”), which shall be executed by the Optionee and an authorized Officer of the Company and which shall contain such terms and conditions as the Administrator shall determine, consistent with the Plan; provided that, in the event of any conflict between a Unit Option Agreement and the Plan, the text of the Plan shall control (unless explicitly set forth in the Unit Option Agreement and approved in writing by the Administrator).

 

Section 4.2              Exercisability of Options

 

(a)            Each Option shall become exercisable according to the terms of the applicable Unit Option Agreement; provided, however, that the Administrator may, on such terms and conditions as it may determine to be appropriate, accelerate the time at which such Option or any portion thereof may be exercised.

 

(b)            Except as otherwise provided in the applicable Unit Option Agreement or as otherwise determined by the Administrator, no portion of an Option which is unexercisable at Termination of Services shall thereafter become exercisable.

 

Section 4.3           Option Price. The price of the Class A-1 Units subject to each Option shall be set by the Administrator; provided, however, that, unless otherwise expressly set forth in the Unit Option Agreement and approved by the Board, the price per Class A-1 Unit shall be not less than 100% of the Fair Market Value of such Class A-1 Units on the date such Option is granted.

 

 

Section 4.4             Expiration of Options. No Option may be exercised to any extent by anyone after the expiration of ten years from the date the Option was granted (or such earlier date as may be set forth in any applicable Unit Option Agreement); or

 

Section 4.5           At-Will Services. Nothing in the Plan or in any Unit Option Agreement hereunder shall confer upon any Optionee any right to continue in the employ of, or service as a Consultant or Director to, the Company or any Subsidiary thereof, or shall interfere with or restrict in any way the rights of the Company and any Subsidiary thereof, which are hereby expressly reserved, to discharge any Optionee at any time for any reason whatsoever, with or without Cause, except to the extent expressly provided otherwise in a written agreement between the Optionee and the Company or any Subsidiary thereof.

 

ARTICLE V.

EXERCISE OF OPTIONS

 

Section 5.1            Person Eligible to Exercise. During the lifetime of the Optionee, only he or she may exercise an Option (or any portion thereof); provided, however, that the Optionee’s Eligible Representative may exercise such Optionee’s Option during the period of his or her disability. After the death of the Optionee, any exercisable portion of an Option may, prior to the time when such portion becomes unexercisable under the Plan or the applicable Unit Option Agreement, be exercised by his or her Eligible Representative.

 

Section 5.2            Partial Exercise. At any time and from time to time prior to the time when the Option becomes unexercisable under the Plan or the applicable Unit Option Agreement, the exercisable portion of an Option may be exercised in whole or in part; provided, however, that the Company shall not be required to issue fractional Class A-1 Units and the Administrator may, by the terms of the Unit Option Agreement, require any partial exercise to exceed a specified minimum number of Class A-1 Units.

 

Section 5.3            Manner of Exercise. An exercisable Option, or any exercisable portion thereof, may be exercised solely by delivery to the corporate secretary of all of the following prior to the time when such Option or such portion becomes unexercisable under the Plan or the applicable Unit Option Agreement:

 

(a)             Notice in writing signed by the Optionee or his or her Eligible Representative stating that such Option or portion is exercised, and specifically stating the number of Class A-1 Units with respect to which the Option is being exercised;

 

(b)          A copy of the LLC Agreement or joinder thereto in the Company’s applicable form signed by the Optionee or Eligible Representative, as applicable, and, if requested by the Company, the Optionee’s spouse;

 

(c)           Full payment for the Class A-1 Units with respect to which such Option or portion is thereby exercised:

 

(i)

In cash, by certified or bank cashier check, or by wire transfer; or

  

 

(ii)           Solely to the extent explicitly set forth in the applicable Unit Option Agreement or as otherwise approved in writing by the Administrator, in Units which have been owned by the Optionee for at least six months (or such shorter period as the Administrator determines will not result in adverse accounting or other implications for the Company) duly endorsed for transfer to the Company with a Fair Market Value on the date of Option exercise equal to the aggregate exercise price of the Option or exercised portion thereof; or

 

(iii)          Solely to the extent explicitly set forth in the applicable Unit Option Agreement or as otherwise approved in writing by the Administrator, following an Initial Public Offering and pursuant to any policies and procedures adopted by the Administrator, delivery of a notice that the Optionee has placed a market sell order with a broker with respect to Class A-1 Units (or any successor equity interest thereto) then issuable upon exercise of the Option, and that the broker has been directed to pay a sufficient portion of the net proceeds of the sale to the Company in satisfaction of the Option exercise price; or

 

(iv)          In such combination of the foregoing or any other property as approved in writing by the Administrator.

 

(d)          The payment to the Company of all amounts necessary to satisfy any and all federal, state, local and foreign tax withholding and similar requirements arising in connection with the exercise of the Option in one of the forms permitted under Section 5.3(c) (and, for the avoidance of doubt, subject to any approvals required thereby);

 

(e)          Such representations and documents as the Administrator deems necessary or advisable to effect compliance with all applicable provisions of the Securities Act, Exchange Act and any other federal or state securities laws or regulations. The Administrator may, in its sole discretion, also take whatever additional actions it deems appropriate to effect such compliance including, without limitation, placing legends on unit certificates, if any, and issuing stop-transfer orders to transfer agents and registrars; and

 

(f)          In the event that the Option or portion thereof shall be exercised pursuant to Section 5.1 by any person or persons other than the Optionee, appropriate proof of the right of such person or persons to exercise the Option or portion thereof.

 

Section 5.4            Settlement Upon Exercise.

 

(a)          Subject to Section 5.4(b), the Company shall record on the books of the Company any Class A-1 Units purchased upon the exercise of any Option or portion thereof or issue or deliver any certificate or certificates for Class A-1 Units purchased upon the exercise of any Option or portion thereof, provided that such recording or issuance or delivery shall not be required prior to fulfillment of all of the following conditions:

 

(i)             The satisfaction of all conditions set forth in Section 5.3 (as determined by the Administrator);

 

 

(ii)           The completion of any registration (or exemption from registration) or other qualification of such Class A -1 Units under any state or federal law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory body, which the Administrator shall, in its sole discretion, deem necessary or advisable;

 

(iii)          The obtaining of any approval or other clearance from any state or federal governmental agency which the Administrator shall, in its sole discretion, determine to be reasonably necessary or advisable; and

 

(iv)         The Company shall have determined that such exercise, purchase, issuance and delivery (and other actions in connection therewith) will not cause the Company to fail to qualify for the “lack of actual trading” safe harbor under Treasury Regulation Section 1.7704-1(j).

 

(b)          Notwithstanding the foregoing, to the extent provided in the applicable Unit Option Agreement, the Company may, in lieu of issuing Class A-1 Units, settle the exercise of an Option (or portion thereof) by payment of an amount equal to the difference between the Fair Market Value of a Class A-1 Unit on the date of settlement and the applicable Option Price (as defined in Section 4.3 above). The timing and form of such payment shall be set forth in the applicable Unit Option Agreement, subject to compliance with Section 409A of the Code (if applicable).

 

ARTICLE VI.

ADMINISTRATION

 

Section 6.1           Administrator. Prior to an Initial Public Offering, the Administrator shall be the Board; provided that the Board may delegate its authority hereunder in accordance with Section 6.2. Following an Initial Public Offering, if any, the full Board shall administer the Plan unless and until there is appointed a compensation committee (or another committee or a subcommittee of the Board assuming the functions of the Administrator under the Plan) that, unless otherwise determined by the Board, shall consist solely of two or more Directors appointed by and holding office at the pleasure of the Board, each of whom is both a “non-employee director” as defined by Rule 16b-3; provided that any action taken by the Administrator shall be valid and effective, whether or not members of the Administrator at the time of such action are later determined not to have satisfied the requirements for membership set forth herein or otherwise provided in the charter of the Administrator. In its sole discretion, the Board may at any time and from time to time exercise any and all rights and duties of the Administrator under the Plan except with respect to matters which under Rule 16b-3 (to the extent applicable), or any regulations or rules issued thereunder, are required to be determined in the sole discretion of the Administrator.

 

Section 6.2           Delegation of Authority. The Board may, but need not, from time to time delegate some or all of its authority to grant and administer Options under the Plan to the Compensation Committee or another committee or subcommittee consisting of one or more members of the Administrator or of one or more Officers of the Company; provided that the Board shall not delegate its authority to grant and/or administer Options for any Directors and the Board shall solely entitled to grant and administer any such Options;provided, further , that to the extent the Board delegates authority to any Officers of the Company, such delegation does not include authority to make or administer any grants to any Officers of the Company. Any delegation hereunder shall be subject to the restrictions and limits that the Board specifies at the time of such delegation, and the Board may at any time rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under this Section 6.2 shall serve in such capacity at the pleasure of the Board.

 

 

Section 6.3           Duties and Powers of the Administrator. It shall be the duty of the Administrator to conduct the general administration of the Plan in accordance with its provisions. Without limiting the foregoing, the Administrator shall have the power to (a) interpret the Plan and the Options and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret, amend or revoke any such rules; and (b) modify the Options granted to Optionees who are foreign nationals or who provide services outside of the United States or establish subplans or procedures under the Plan to address differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters and each such subplan or procedure shall, to the extent determined appropriate by the Administrator, be deemed incorporated by reference in full to the Plan. All determinations and decisions made by the Administrator under any provision of the Plan or of any Option granted thereunder shall be final, conclusive and binding on all persons.

 

Section 6.4          Professional Assistance, Good Faith Actions. All expenses and liabilities incurred by the members of the Administrator in connection with the administration of the Plan shall be borne by the Company. The Administrator may engage attorneys, consultants, accountants, appraisers, brokers or other persons as it determines appropriate. The Administrator, the Company and its Officers and Directors shall be entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and all interpretations and determinations made by the Administrator shall be final and binding upon all Optionees, the Company and all other interested Persons. No member of the Board or Officer shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or the Options, and all members of the Board and Officers shall be indemnified by the Company, to the fullest extent permitted by law, in respect to any such action, determination or interpretation.

 

ARTICLE VII.

OTHER PROVISIONS

 

Section 7.1              Changes in Units; Disposition of Assets and Company Events

 

(a)         Subject to Section 7.1(d), in the event that the Board determines in its sole discretion that any extraordinary distribution, recapitalization, reclassification, unit split, reverse unit split, reorganization, merger, consolidation, combination, repurchase, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, exchange of Units or other securities of the Company, issuance of warrants or other rights to purchase Units or other securities of the Company, or other similar corporate transaction or event (other than an Equity Restructuring), affects the Units such that an adjustment is determined by the Board to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to an Option, then the Board may, in such manner as it may deem equitable in its discretion, adjust any or all of:

 

(i)            The number and kind of Class A-1 Units (or other securities or property) with respect to which Options may be granted under the Plan (including, but not limited to, adjustments of the limitations in Section 2.1 on the maximum number and kind of units which may be issued);

 

 

(ii)          The number and kind of Class A-1 Units (or other securities or property) subject to outstanding Options;

 

(iii)

The exercise price with respect to any Option; and

 

(iv)        The financial or other “targets” specified in each Unit Option Agreement for determining the exercisability of Options, if applicable.

  

For the avoidance of doubt, the Board is not required to make any of the adjustments described above in connection with a distribution by the Company, except as it deems appropriate in its sole discretion.

 

(b)        Without limiting Section 7.1(c) and subject to Section 7.1(d) and the terms of outstanding Unit Option Agreements, upon the occurrence of a Company Event or other transaction or event described in Section 7.1(a) or any unusual or nonrecurring transactions or events affecting the Company, any Affiliate of the Company, or the financial statements of the Company or any Affiliate (including, without limitation, an Initial Public Offering), or of changes in applicable laws, regulations, or accounting principles, as a result of which the Board determines in its sole discretion that action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or with respect to any Option under this Plan, to facilitate such Company Event or transactions or events (including, without limitation, any restructuring, recapitalization or similar occurrences related to any Initial Public Offering), or to give effect to such changes in laws, regulations or principles, the Board, in its sole discretion, is hereby authorized to take any one or more of the following actions on such terms and conditions at it deems appropriate (whether set forth in the terms of the applicable Unit Option Agreement or otherwise by action taken prior to or in connection with the occurrence of such Company Event or transaction or event):

 

(i)          Provide, either automatically or upon the Optionee’s request, for either (A) the cancellation of any such Option in exchange for an amount of cash, securities, or other property equal to the amount that could have been attained upon the exercise of the vested portion of such Option immediately prior to the occurrence of such transaction or event (and, for the avoidance of doubt, if as of the date of the occurrence of such transaction or event, the Board determines that no amount would have been obtained upon the exercise of the vested portion of such Option, then the Option may be cancelled by the Company without payment), or (B) the replacement of such Option with other rights, cash, securities or other property selected by the Board;

 

 

(ii)           Provide that the Option (or any portion thereof) will be terminated and cannot be exercised after such event;

 

(iii)           Provide that for a specified period of time prior to such Company Event, such Option shall be exercisable as to all units covered thereby or a specified portion of such units, notwithstanding anything to the contrary in this Plan or the applicable Unit Option Agreement and, if such Option is not exercised prior to such Company Event or transaction or event, it shall expire;

 

(iv)           Provide such Option (or any portion thereof) shall be assumed by the successor or surviving entity in the Company Event or transaction or event, or a parent or Subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of such successor or surviving corporation, or a parent or Subsidiary thereof, with appropriate adjustments as to the number and kind of equity interests and prices;

 

(v)          Make adjustments in the number and type of Class A-1 Units (or other securities or property) subject to outstanding Options (or any portion thereof) and/or in the terms and conditions of (including the exercise price), and the criteria included in, outstanding Options and Options which may be granted in the future; and

 

(vi)           For reasons of administrative convenience or otherwise, provide that some or all Options may not be exercised during a specified period of not more than thirty (30) days prior to the consummation of a Company Event or transaction or event.

 

(c)

In connection with the occurrence of any Equity Restructuring:

 

(i)           The number and type of securities subject to each outstanding Option and the exercise price thereof, if applicable, shall be equitably adjusted in accordance with this Section 7.1(c). The adjustments provided under this Section 7.1(c) shall be nondiscretionary and shall be final and binding on the affected Optionee and the Company.

 

(ii)          The Board shall make such equitable adjustments, if any, as the Board in its discretion may deem appropriate to reflect such Equity Restructuring with respect to the aggregate number and kind of Class A-1 Units (or other securities or property) that may be issued under the Plan (including, but not limited to, adjustments of the limitation set forth in Section 2.1).

 

(d)          If any rounding of the number of Class A-1 Units subject to any Option is required in connection with any adjustment or action described in this Section 7.1, the number of Class A-1 Units subject to such Option shall be rounded down to the nearest hundredth and the exercise price of any Option shall be rounded up to the nearest cent.

 

(e)           Notwithstanding the foregoing provisions of this Section 7.1, unless otherwise determined by the Board, no adjustments described in this Section 7.1 shall be made in connection with (i) any equity investment by the Company’s unitholders in the Company pursuant to a Company Event in connection with which the Class A-1 Units are sold at the then-current Fair Market Value or (ii) any equity investment by third parties at the then-current Fair Market Value which results in a dilution of ownership of any or all of the Units.

 

 

Section 7.2           Options Not Transferable. No Option or interest or right therein or part thereof shall be liable for the debts, contracts or engagements of the Optionee or his or her successors in interest or shall be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means whether such disposition be voluntary or involuntary or by operation of law, by judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof shall be null and void and of no effect; provided, however, that nothing in this Section 7.2 shall prevent transfers by will or by the applicable laws of descent and distribution.

 

Section 7.3           Amendment, Suspension or Termination of the Plan. The Plan may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Board. However, without unitholder approval within twelve (12) months before or after such action, no action of the Board may, except as provided in Section 7.1, increase any limit imposed in Section 2.1 on the maximum number of units which may be issued on exercise of Options or extend the period set forth in this Section 7.3 during which Options may be granted. Except as provided by Section 7.1, any amendment, suspension nor termination of the Plan that materially and adversely affects any Option in a disproportionate manner as compared to other similarly-situated Options shall not be effective without the consent of the holder of the Option so affected. No Option may be granted during any period of suspension nor after termination of the Plan, and in no event may any Option be granted under this Plan after the expiration of ten years from the date the Plan is adopted by the Board. For the avoidance of doubt, nothing herein or in any Unit Option Agreement shall limit or otherwise affect the ability to amend or modify the LLC Agreement in accordance with its terms (including, without limitation, any amendment or modification of the rights and obligations of the Class A-1 Units thereunder (including any applicable tag-along, drag-along, registration, lock-up, right of first refusal or other similar rights associated with such Class A-1 Units)) and any amendment to increase the number of outstanding units of the Company or to add a new class of units, including any class with rights superior to those of the Class A-1 Units and no consent or action from any Optionee shall be required in order to effect any such amendment or modification.

 

Section 7.4           Effect of Plan Upon Other Option and Compensation Plans. The adoption of this Plan shall not affect any other compensation or incentive plans in effect for the Company or any Affiliate. Nothing in this Plan shall be construed to limit the right of the Company or any Affiliate (a) to establish any other forms of incentives or compensation for managers, employees or consultants of the Company or any Affiliate; or (b) to grant or assume options otherwise than under this Plan in connection with any proper corporate purpose, including, but not by way of limitation, the grant or assumption of options in connection with the acquisition by purchase, lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation, firm or association.

 

Section 7.5           Titles and Headings. Titles and headings are provided herein for convenience only and are not to serve as a basis for interpretation or construction of the Plan.

 

Section 7.6           Conformity to Securities Laws. The Plan is intended to conform to the extent necessary with all provisions of (a) the Securities Act and the Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange Commission thereunder and (b) any applicable state and local securities laws and any and all regulations and rules promulgated by any applicable state or local regulatory authority thereunder, in each case to the extent the Company or any Optionee is subject to the provisions thereof. Notwithstanding anything herein to the contrary, the Plan shall be administered, and Options shall be granted and may be exercised, only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and Options granted hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

 

 

Section 7.7           Governing Law. To the extent not preempted by federal law, the Plan shall be construed in accordance with and governed by the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof, or principles of conflicts of law of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware.

 

Section 7.8           Severability. In the event any portion of the Plan or any action taken pursuant thereto shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provisions had not been included, and the illegal or invalid action shall be null and void.

 

Section 7.9           Electronic Delivery. The Company may, in its sole discretion, deliver any documents or disclosures related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery.

 

Section 7.10           Section 409A. To the extent applicable, the Plan and Unit Option Agreements shall be interpreted in accordance with Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of the Plan to the contrary, in the event that the Board determines that any Option may be subject to Section 409A of the Code, the Board may adopt such amendments to the Plan and the applicable Unit Option Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Board determines are necessary or appropriate to (a) exempt the Option from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Option, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance and thereby avoid the application of penalty taxes under Section 409A of the Code. Notwithstanding anything herein to the contrary, no provision of the Plan or any Unit Option Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A of the Code from any Optionee or other Person to the Company or any of its Affiliates, employees or agents.

 

* * * * *

 

 

I hereby certify that the foregoing Plan was duly adopted by the Board of Directors of Fluence Energy, LLC as of the date first written above.

 

Executed as of the date first written above.

 

 

	Officer Name:  Frank Fuselier
	Officer Title:    Secretary

 

 

CALIFORNIA SUPPLEMENT

 

This supplement is intended to satisfy the requirements of Section 25102(o) of the California Corporations Code and the regulations issued thereunder (“Section 25102(o)”). Notwithstanding anything to the contrary contained in the Plan and except as otherwise determined by the Administrator, the provisions set forth in this supplement shall apply to all Awards granted under the Plan to a Participant who is a resident of the State of California on the date of grant (a “California Participant”) and which are intended to be exempt from registration in California pursuant to Section 25102(o), and otherwise to the extent required to comply with applicable law (but only to such extent). Definitions in the Plan are applicable to this supplement.

 

1.             Limitation On Securities Issuable Under Plan. The amount of securities issued pursuant to the Plan shall not exceed the amounts permitted under Section 260.140.45 of the California code of regulations to the extent applicable.

 

2.              Additional Limitations For Options. The terms of all Options shall comply, to the extent applicable, with Section 260.140.41 of the California code of regulations.

 

3.             Additional Requirement To Provide Information To California Participants. The company shall provide to each California Participant, not less frequently than annually, copies of annual financial statements (which need not be audited). The company shall not be required to provide such statements to key persons whose duties in connection with the company assure their access to equivalent information. In addition, this information requirement shall not apply to any plan or agreement that complies with all conditions of Rule 701 of the Securities Act of 1933, as amended; provided that for purposes of determining such compliance, any registered domestic partner shall be considered a “family member” as that term is defined in Rule 701.

 

* * * * *

 

 

UNIT OPTION AGREEMENT

OF

FLUENCE ENERGY, LLC

 

THIS AGREEMENT (the “Agreement”) is entered into as of [ n ], 2021 (the “Grant Date”) by and between Fluence Energy, LLC, a Delaware limited liability company (the “Company”), and [_____], an employee, consultant or director of the Company or one of its Subsidiaries (hereinafter referred to as the “Optionee”).

 

WHEREAS, the Board has approved the 2020 Unit Option Plan of Fluence Energy, LLC (as it may be amended from time to time, the “Plan”), the terms of which are hereby incorporated by reference and made a part of this Agreement;

 

WHEREAS, the Administrator (as defined in the Plan) has determined to grant the Option provided for herein to the Optionee as an inducement to enter into or remain in the service of the Company or one of its Subsidiaries and as an incentive for increased efforts during such service, and has advised the Company thereof and instructed the undersigned officers to issue said Option; and

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:

 

ARTICLE I.

DEFINITIONS

 

Whenever the following terms are used in this Agreement, they shall have the meaning specified below unless the context clearly indicates to the contrary. Capitalized terms used in this Agreement and not defined below shall have the meaning given such terms in the Plan, or if not defined in the Plan, in the LLC Agreement. The singular pronoun shall include the plural, where the context so indicates.

 

Section 1.1           “Cause” shall mean (a) “Cause” as defined in the Optionee’s employment or service agreement, or (b) if no such agreement or if “Cause” is not defined in such agreement, the occurrence of one or more of the following events or conditions, as determined by the Administrator in good faith, (i) a material breach by the Optionee of any of his or her obligations set forth in any written agreement with the Company or any of its Affiliates as the same may then be in effect; (ii) fraud, embezzlement, theft or other material dishonesty by the Optionee in connection with services to or otherwise with respect to the Company or any of its Affiliates; (iii) the Optionee’s commission of any act or omission that results in or could reasonably be expected to result in any material damage or harm to the business, property or reputation of the Company or any of its Affiliates; (iv) the Optionee’s commission of, indictment for, or a plea of nolo contendere to, any felony under any state, federal or foreign law or any crime involving moral turpitude or dishonesty; (v) the Optionee’s unlawful use (including being under the influence) or possession of illegal drugs, or repeated intoxication with alcohol, at the premises of the Company or any of its Affiliates or otherwise while performing (or holding himself or herself as performing) services for or on behalf of the Company or any of its affiliates; (vi) Optionee’s prolonged and unexcused absence from work (other than by reason of Disability); or (vii) refusal or failure by the Optionee to attempt in good faith to follow or carry out the reasonable instructions of the Board or the Optionee’s supervisor which failure, if curable, does not cease within fifteen (15) days after written notice of such failure is given to the Optionee by the Company or any Affiliate.

 

 

Section 1.2           “Company” shall have the meaning set forth in the preamble hereto.

 

Section 1.3         “Disability” shall mean the Board has made a good faith determination that the Optionee has become physically or mentally incapacitated or disabled such that the Optionee is unable to perform for the Company substantially the same services, with or without accommodation, as the Optionee performed prior to incurring such incapacity or disability, and such incapacity or disability exists for an aggregate of three (3) calendar months in any twelve (12) month period. In connection with making such determination, the Company, at its option and expense, shall be entitled to select and retain a physician to confirm the existence of such incapacity or disability, and the determination made by such physician shall be binding on the parties for the purposes of this Agreement.

 

Section 1.4          “Grant Date” shall have the meaning set forth in the preamble hereto.

 

Section 1.5          “Option” shall mean the Option to purchase Class A-1 Units granted under this Agreement.

 

Section 1.6          “Optionee” shall have the meaning set forth in the preamble hereto. Section 1.7 “Plan” shall have the meaning set forth in the Recitals hereto.

 

ARTICLE II.

GRANT OF OPTION

 

Section 2.1            Grant of Option. In consideration of the Optionee’s agreement to enter into or remain in the employ of, consultancy to or other service relationship with the Company or one of its Subsidiaries and the Optionee’s agreement to abide by Article IV of this Agreement, and for other good and valuable consideration, as of the Grant Date, the Company irrevocably grants to the Optionee the Option to purchase any part or all of an aggregate of [___] Class A-1 Units upon the terms and conditions set forth in the Plan and this Agreement.

 

Section 2.2            Option Subject to Plan. The Option granted hereunder is subject to the terms and provisions of the Plan, including without limitation, Article V and Sections 7.1, 7.2 and 7.3 thereof.

 

Section 2.3           Option Price. The purchase price of the Class A-1 Units covered by the Option shall be $[ n ] per Class A-1 Unit (without commission or other charge), which is not less than 100% of the Fair Market Value of a Class A-1 Unit as of the Grant Date.

 

 

ARTICLE III.

EXERCISABILITY

 

Section 3.1            Commencement of Exercisability.

 

(a)           Vesting Requirements. Subject to Sections 3.1(d) and 3.3, the Option shall become vested and exercisable upon the satisfaction of the following two criteria: (1) a service-based requirement (the “Service-Based Requirement”) and (2) a liquidity event requirement (the “Liquidity Event Requirement”), each as set forth below.

 

(b)           Service-Based Requirement. The Service-Based Requirement will be satisfied over a three-year period following the Grant Date, as to one-third of the Option on each of the first, second and third anniversaries of the Grant Date; provided that the Optionee remains continuously employed or engaged in active service by the Company or any of its Subsidiaries (and no Termination of Services occurs) from the Grant Date through the applicable anniversary of the Grant Date. Notwithstanding the foregoing, upon the occurrence of a Liquidation Event, the Service-Based Requirement will be fully satisfied; provided that the Optionee remains continuously employed or engaged in active service by the Company or any of its Subsidiaries (and no Termination of Services occurs) from the Grant Date through the consummation of such Liquidation Event.

 

(c)           Liquidity Event Requirement. The Liquidity Event Requirement will be satisfied upon the earlier to occur of (i) a Liquidation Event or (ii) an Initial Public Offering; provided that the Optionee remains continuously employed or engaged in active service by the Company or any of its Subsidiaries (and no Termination of Services occurs) from the Grant Date through the consummation of such Liquidation Event or Initial Public Offering, as applicable.

 

(d)           Termination of Service. Unless otherwise determined by the Administrator in its sole discretion prior to the date of a Termination of Services, no portion of the Option which is unexercisable at a Termination of Services for any reason shall thereafter become exercisable. In the event of a Termination of Services for Cause, such unexercisable portion shall be forfeited as of the date of such Termination of Services. In the event of a Termination of Services other than for Cause, the portion of the Option which is unexercisable shall remain outstanding for a thirty (30) day-period (or such shorter period as determined by the Administrator in its sole discretion) following such Termination of Services and, except as otherwise determined by the Administrator, such unexercisable portion shall be forfeited as of the last day of such period. For the avoidance of doubt, any portion of the Option which is unexercisable at a Termination of Service for any reason shall only become vested and exercisable pursuant to action by the Administrator (and, in no event, based on the satisfaction of the Service-Based Requirement or Liquidity Event Requirement following Termination of Services).

 

Section 3.2            Duration of Exercisability. The installments provided for in Section 3.1 are cumulative. Each such installment which becomes exercisable pursuant to Section 3.1 shall remain exercisable until it becomes unexercisable.

 

 

Section 3.3             Expiration of Option. The Option shall expire and may not be exercised to any extent by anyone after the first to occur of the following events:

 

(a)

The tenth anniversary of the Grant Date; or

 

(b)          The 90th day following the date of the Optionee’s Termination of Services for any reason other than (i) termination by the Company for Cause or (ii) due to the Optionee’s death or Disability; or

 

(c)          The date of the Optionee’s Termination of Services by the Company for Cause; or

 

(d)           The one year anniversary of the date of Termination of Services due to the Optionee’s death or Disability.

 

Section 3.4            Partial Exercise. Any exercisable portion of the Option or the entire Option, if then wholly exercisable, may be exercised in whole or in part at any time prior to the time when the Option or portion thereof becomes unexercisable.

 

Section 3.5           Exercise of Option. The exercise of the Option shall be governed by the terms of this Agreement and the terms of the Plan, including, without limitation, the provisions of Article V of the Plan.

 

ARTICLE IV.

OTHER PROVISIONS

 

Section 4.1          Not a Contract of Employment or Services. Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ or engagement of the Company or any of its Subsidiaries or shall interfere with or restrict in any way the rights of the Company or its Subsidiaries, which are hereby expressly reserved, to discharge the Optionee at any time for any reason whatsoever, with or without Cause, except as may otherwise be provided by any written agreement entered into by and between the Company and the Optionee.

 

Section 4.2          Rights as Unitholders. The Optionee acknowledges and agrees that he or she shall not be, nor have any of the rights or privileges of, a unitholder of the Company in respect of any Class A-1 Units purchasable upon the exercise of any part of the Option unless and until he or she exercises the Option and complies with the conditions set forth in Section 5.3 of the Plan (including, without limitation, executing a copy of the LLC Agreement or joinder thereto in the Company’s applicable form).

 

Section 4.3          Units Subject to Plan and LLC Agreement; Entire Agreement. The Optionee acknowledges that any Class A-1 Units acquired upon exercise of the Option are subject to the terms of the Plan and the LLC Agreement. The terms of this Agreement are intended by the parties to be the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Agreement (together with the Plan and the LLC Agreement) shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial, administrative, or other legal proceeding to vary the terms of this Agreement; provided that nothing in this Section 4.3 shall supersede or modify the terms of any restrictive covenants in any other written agreements between Optionee and the Company or any of its Affiliates or in any policy of the Company or any of its Affiliates.

 

 

Section 4.4           Transfer Restrictions. Class A-1 Units acquired upon exercise of an Option shall be subject to the terms and conditions of the LLC Agreement (including, without limitation, any transfer restrictions included therein). In addition, the Administrator, in its sole discretion, may impose further restrictions on the transferability of the Class A-1 Units purchasable upon the exercise of an Option as it deems appropriate.

 

Section 4.5         Withholding. The Optionee shall in accordance with the Plan pay to the Company or make provision satisfactory to the Administrator for payment of, any taxes required by applicable law to be withheld or paid in connection with the Option no later than the date of the event creating the tax liability. The Company may, to the extent permitted by applicable laws, deduct any such tax obligations based on applicable withholding rates from any payment of any kind otherwise due to the Optionee. The Optionee acknowledges and agrees that he or she has had the opportunity to consult their own independent tax and other advisors with respect to the Option and this Agreement and the potential tax and other consequences of the grant, receipt, ownership or exercise of the Option and the ownership and disposition of any Class A-1 Units acquired pursuant to any exercise of the Option, including the tax consequences under federal, state, local and other tax laws of the United States or any other jurisdiction and the possible effects of changes in such tax laws. The Optionee understands that the Company reports as a partnership for U.S. federal income tax purposes and that the Company’s partners (including holders of Class A-1 Units) generally are required to file income tax returns and pay income taxes within the United States, even if the partners are not otherwise citizens or residents of the United States, and further understands that withholding taxes can apply with respect to the Company’s partners, including in connection with allocations or distributions to the partners or dispositions of interests in the Company. The Optionee is not relying on the Company or any of its Affiliates or members or any of their respective employees, agents, representatives or advisors with respect to any such consequences.

 

Section 4.6          Jurisdiction and Venue. By accepting the Option, the Optionee consents to the exclusive jurisdiction and venue of the state and federal courts located in New York, New York, as applicable, for any action, suit or proceeding arising from or in connection with the interpretation or enforcement of the Plan, this Agreement or the Option hereunder.

 

Section 4.7          Waiver of Jury Trial. BY ACCEPTING THE OPTION, THE OPTIONEE WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, THAT ARISES OUT OF, IS CONNECTED WITH OR IS RELATED OR INCIDENTAL TO, THE PLAN, THIS AGREEMENT OR THE OPTION HEREUNDER. EITHER OF THE COMPANY OR THE OPTIONEE MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE COMPANY AND THE OPTIONEE IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY ACTION OR PROCEEDING WHATSOEVER BETWEEN OR AMONG THEM RELATING TO THE PLAN, THIS AGREEMENT OR THE OPTION HEREUNDER SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

 

 

Section 4.8           Construction. This Agreement shall be administered, interpreted and enforced under the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof, or principles of conflicts of law of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware.

 

Section 4.9           Conformity to Securities Laws. The Optionee acknowledges that the Plan is intended to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act and any and all regulations and rules promulgated thereunder by the Securities and Exchange Commission, including without limitation Rule 16b-3. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Option is granted and may be exercised, only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and regulations.

 

Section 4.10          Lock-Up Period. In connection with an Initial Public Offering and upon request of the underwriters managing such offering of the Company’s or its successor’s securities, the Optionee agrees not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any Class A-1 Units or other securities of the Company or its successor, however or whenever acquired (other than those included in the registration) or engage in any swap or derivative transactions involving the Company’s or its successor’s securities, in each case without the prior written consent of such underwriters, for such period of time as may be requested by such managing underwriters (commencing as of the effective date of such registration ending no later than 180 days thereafter) and to execute an agreement reflecting the foregoing as may be requested by the underwriters at the time of an Initial Public Offering; provided however that, if during the last 17 days of the restricted period the Company issues an earnings release or material news or a material event relating to the Company occurs, or prior to the expiration of the restricted period the Company announces that it will release earnings results during the 16-day period beginning on the last day of the restricted period, then, upon the request of the managing underwriter, to the extent required by any FINRA rules, the restrictions imposed by this Section 4.10 shall continue to apply until the end of the third trading day following the expiration of the 15-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event. In no event will the restricted period extend beyond 216 days after the effective date of the registration statement.

 

Section 4.11          Amendment, Suspension and Termination. The Option may be wholly or partially amended or otherwise modified, suspended or terminated at any time or from time to time by the Administrator or the Board; provided that the Optionee’s consent shall be required with respect to any such action unless (a) the Administrator determines that the action, taking into account any related action, would not materially and adversely affect the Optionee or (b) such change is permitted without Optionee’s consent under the Plan or Section 4.13 or 4.14 of this Agreement.

 

 

Section 4.12          Consent by Spouse. Each Optionee who is married shall deliver a duly executed Consent by Spouse (the “Consent by Spouse”), in the form prescribed in Exhibit A to this Agreement, at the time of execution of this Agreement. Each Optionee who is unmarried shall also have such Consent by Spouse executed by any spouse married by him or her at any time subsequent to the Grant Date while an Optionee. Any Optionee who executes this Agreement but does not provide an executed Consent by Spouse hereby represents and warrants to the Company that such Optionee does not have a spouse. Each Optionee agrees and acknowledges that compliance with the requirements of this Section 4.12 constitutes an essential part of the consideration for the parties’ execution of this Agreement.

 

Section 4.13          Section 409A. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, in the event that the Administrator determines that this Option may be subject to Section 409A of the Code, the Administrator may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions that the Administrator determines are necessary or appropriate to (a) exempt the Option from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Option, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance and thereby avoid the application of penalty taxes under such Section 409A. Notwithstanding anything herein to the contrary, in no event shall any liability for failure to comply with the requirements of Section 409A of the Code be transferred from the Optionee or any other Person to the Company or any of its Affiliates, employees or agents pursuant to the terms of this Agreement or otherwise.

 

Section 4.14          Section 280G.

 

(a) Except as otherwise provided in subsection (b) below, in the event that it shall be determined that any right to receive the Option, payment or other benefit under this Agreement (including, without limitation, the acceleration of the vesting and/or exercisability of the Option and taking into account the effect of this Section) or any employment or other agreement or arrangement by and between the Optionee and the Company or any of its Affiliates, to or for the benefit of the Optionee (the “Payments”), would, in whole or part when aggregated with any other right, payment or benefit to or for the Optionee under all other agreements or benefit plans of the Company or any of its Affiliates or otherwise, be nondeductible by the Company (or other Person making such payment or providing such benefit) as a result of Section 280G of the Code and/or would subject the Optionee to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) then, to the extent necessary to make the Payments deductible and to exempt the Payments from the Excise Tax (but only to such extent and after taking into account any reduction in the Payments relating to Section 280G of the Code under any other plan, arrangement or agreement), the Option or any other right, payment or benefit under this Agreement shall not become exercisable, vested or paid and, if requested, Optionee shall execute a waiver in the Company’s applicable form to effect this Section 4.14(a).

 

 

(b)           Notwithstanding any other provision of this Agreement, the provisions of subsection (a) above shall not apply to reduce the Payments if the Payments that would otherwise be nondeductible under Section 280G of the Code and/or would subject the Optionee to the Excise Tax are disclosed to and approved by the appropriate equityholders in accordance with Section 280G(b)(5)(B) of the Code and the Department of Treasury regulations thereunder.

 

(c)           The Company shall use commercially reasonable efforts to (i) prepare and deliver to (or cause to be prepared and delivered to) the applicable equityholders the disclosure required by Section 280G(b)(5)(B) of the Code with respect to the Payments and (i) seek the vote of such equityholders pursuant to subsection (b) above in a timely manner.

 

Section 4.15          Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile or electronic copies of signed signature pages shall be binding originals.

 

[signature pages follow]

 

 

IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto as of the date first above written.

 

	FLUENCE ENERGY, LLC
	By:
	Its:

 

Signature Page to Unit Option Agreement

 

 

	OPTIONEE
	[_____]
	Residence Address:
	Optionee’s Social Security Number:
	_______________________

 

Signature Page to Unit Option Agreement

 

 

SPOUSAL CONSENT

 

The Optionee’s spouse, if any, is fully aware of, understands and fully consents and agrees to the provisions of this Agreement and the LLC Agreement and their binding effect upon any marital or community property interests he or she may now or hereafter own with respect to the Options issued to the Optionee, and agrees that the termination of his or her and the Optionee’s marital relationship for any reason shall not have the effect of removing any Options otherwise subject to this Agreement from coverage hereunder or under the LLC Agreement and that his or her awareness, understanding, consent and agreement are evidenced by his or her signature below. Further, the undersigned acknowledges that he or she has been advised to and given the opportunity to consult his or her own independent attorneys and advisors prior to signing this Spousal Consent, and has done so to the extent the undersigned deemed appropriate.

 

	Spouse’s Name:

 

Signature Page to Spousal Consent to Unit Option Agreement

 

 

Exhibit 10.8

 

FLUENCE ENERGY, LLC

PHANTOM EQUITY INCENTIVE PLAN

 

ARTICLE 1.

PURPOSE

 

1.1            The purpose of this Fluence Energy, LLC Phantom Equity Incentive Plan (this “Plan”) is to promote the interests of Fluence Energy, LLC (“Fluence” or the “Company”), and its Affiliates (as defined below) by (a) attracting and retaining officers, directors, managers employees and consultants of Fluence and its Affiliates and (b) enabling such persons to acquire an economic interest in Fluence and participate in the long-term growth and financial success of Fluence through the grant of rights to receive cash payments under the circumstances described herein. This Plan is not intended to preclude other management incentive awards and programs.

 

ARTICLE 2.

DEFINITIONS

 

As used in this Plan, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined in this Plan shall have the meanings set forth in the Second Amended and Restated Fluence Energy, LLC Limited Liability Company Agreement entered into as of December 29, 2020, as it may be amended from time to time (the “Fluence LLC Agreement”).

 

2.1            “Administrator” shall mean the administrator of the Plan as set forth in Article 3.

 

2.2            “Award Agreement” shall mean any written agreement, contract, or other instrument or document in a form approved by the Administrator, in its sole discretion, which evidences any Phantom Units awarded hereunder or otherwise subject to the terms of the Plan, and which is executed or acknowledged by a Participant.

 

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

 

2.4            “Cause” shall mean (a) “Cause” as defined in the Participant’s employment or service agreement, or (b) if no such agreement or if “Cause” is not defined in such agreement, the occurrence of one or more of the following events or conditions, as determined by the Administrator in good faith, (i) a material breach by the Participant of any of his or her obligations set forth in any written agreement with Fluence or any of its Subsidiaries as the same may then be in effect; (ii) fraud, embezzlement, theft or other material dishonesty by the Participant in connection with services to or otherwise with respect to Fluence or any of its Affiliates; (iii) the Participant’s commission of any act or omission that results in or could reasonably be expected to result in any material damage or harm to the business, property or reputation of Fluence or any of its Affiliates; (iv) the Participant’s commission of, indictment for, or a plea of nolo contendere to, any felony under any state, federal or foreign law or any crime involving moral turpitude or dishonesty; (v) the Participant’s unlawful use (including being under the influence) or possession of illegal drugs, or repeated intoxication with alcohol, at the premises of Fluence or any of its Affiliates or otherwise while performing (or holding himself or herself as performing) services for or on behalf of Fluence or any of its affiliates; (vi) Participant’s prolonged and unexcused absence from work (other than by reason of Disability); or (vii) refusal or failure by the Participant to attempt in good faith to follow or carry out the reasonable instructions of the Board or the Participant’s supervisor which failure, if curable, does not cease within fifteen (15) days after written notice of such failure is given to the Participant by Fluence or any Subsidiary.

 

 

2.5            “Code” shall mean the U.S. Internal Revenue Code of 1986, as amended.

 

2.6          “Consultant” shall mean any consultant or adviser (other than a Director) if: (a) the consultant or adviser renders bona fide services to Fluence or a Subsidiary thereof; (b) the services rendered by the consultant or adviser are not in connection with the offer or sale of securities in a capital-raising transaction and do not directly or indirectly promote or maintain a market for Fluence’s securities; and (c) the consultant or adviser is a natural person.

 

2.7         “Deferred Consideration” means, in connection with a Liquidation Event (other than an Initial Public Offering), any amounts of consideration payable to holders of Fluence Units after the consummation of the transaction, including any post-closing purchase price adjustment, earn-out, holdback (whether or not escrowed) or any other form of deferred consideration, but excluding any closing-date payments that are delayed beyond the closing of the transaction solely for administrative convenience, as determined in the sole discretion of the Administrator.

 

2.8            “Director” shall mean any member of the Board.

 

2.9            “Disability” shall mean the Board has made a good faith determination that the Participant has become physically or mentally incapacitated or disabled such that the Participant is unable to perform for Fluence substantially the same services, with or without accommodation, as the Participant performed prior to incurring such incapacity or disability, and such incapacity or disability exists for an aggregate of three (3) calendar months in any twelve (12) month period. In connection with making such determination, Fluence, at its option and expense, shall be entitled to select and retain a physician to confirm the existence of such incapacity or disability, and the determination made by such physician shall be binding on the parties for the purposes of this Agreement.

 

2.10     “Employee” shall mean any employee (as defined in accordance with the regulations and revenue rulings then applicable under Section 3401(c) of the Code) of Fluence or one of its Subsidiaries.

 

2.11           “Fair Market Value” of a Unit as of a given date shall, subject to Section 6.2(b), be:

 

(a)            The closing price of a Unit on the New York Stock Exchange, Nasdaq or such other principal exchange on which such units are then trading, if any (or as reported on any composite index which includes the New York Stock Exchange, Nasdaq or such other principal exchange), on the most recent trading day prior to such determination date on which a sale occurred; or

 

(b)            If Units are not traded on an exchange but are quoted on a quotation system, the mean between the closing representative bid and asked prices for a Unit on the most recent trading day prior to such determination date on which sales prices or bid and asked prices, as applicable, are reported by such quotation system; or

 

 

(c)            If Units are not publicly traded on an exchange and not quoted on a quotation system, the fair market value of a Unit as determined by the Board in its sole discretion.

 

2.12           “Fluence Units” shall mean any units or other ownership interest in Fluence (or any successor thereto) issued by Fluence (or any successor thereto) from time to time.

 

2.13           “Liquidation Event” shall mean unless (i) the Requisite Class A Majority and (ii) the Requisite Class B Majority elect otherwise by written notice sent to the Company at least five (5) Business Days prior to the effective date of any such event:

 

(a)            a merger or consolidation or any similar transaction or series of related similar transactions in which (i) the Company is a constituent party or (ii) a subsidiary of the Company is a constituent party and the Company issues Units pursuant to such merger, consolidation, similar transaction or series of related similar transactions; provided, however, that any merger, consolidation, or similar transaction or series of related similar transactions involving the Company or a subsidiary in which the Units outstanding immediately prior to such merger, consolidation or similar transaction or series of related similar transactions continue to represent, immediately following such transaction or series of related transactions, at least a majority, by voting power of the Equity Securities of (A) the surviving or resulting entity or (B) if the surviving or resulting entity is a wholly-owned subsidiary of another entity immediately following such merger, consolidation or similar transaction or series of transactions, the parent entity of such surviving or resulting entity shall not constitute a Deemed Liquidation Event; or

 

(b)            the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company or any subsidiary of the Company of all or substantially all the assets of the Company and its subsidiaries taken as a whole or (ii) the sale or disposition (whether by merger, consolidation or otherwise, and whether in a single transaction or a series of related transactions) of one (1) or more subsidiaries of the Company if substantially all of the assets of the Company and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Company; or

 

(c)              the six-month anniversary following an Initial Public Offering.

 

Notwithstanding the foregoing, to the extent required to comply with Section 409A of the Code, a Liquidation Event shall not occur with respect to an award of Phantom Units unless the underlying transaction or event constitutes a “change in control event” for purposes of Section 409A of the Code.

 

2.14          “Participant” shall mean any employee, consultant or director who is eligible under Article 5 for, and is selected by the Administrator, in its sole and absolute discretion, to receive, an award of Phantom Units under this Plan and is a party to an Award Agreement.

 

2.15       “Person” means an individual, a corporation, a partnership, a joint venture, a trust, an unincorporated organization, a limited liability company, a government and any agency or political subdivision thereof.

 

 

2.16           “Termination of Consultancy” shall mean the time when the engagement of a Participant as a Consultant to Fluence or a Subsidiary thereof is terminated for any reason, with or without Cause, including, but not by way of limitation, by resignation, discharge, death or retirement, but excluding a termination where there is a simultaneous commencement of employment with Fluence or any Subsidiary thereof and/or the Consultant becomes (or remains) a Director. The Administrator, in its sole discretion, shall determine the effect of all matters and questions relating to Termination of Consultancy.

 

2.17          “Termination of Directorship” shall mean the time when a Participant who is a Director ceases to be a Director for any reason, including but not by way of limitation, a termination by resignation, failure to be elected or appointed, death or retirement but excluding a termination where there is a simultaneous commencement of employment with Fluence or any Subsidiary thereof. The Board, in its sole discretion, shall determine the effect of all matters and questions relating to Termination of a Director.

 

2.18         “Termination of Employment” shall mean the time when the employee-employer relationship between a Participant and Fluence (and its Subsidiaries), is terminated for any reason, with or without Cause, including, but not by way of limitation, a termination by resignation, discharge, death or retirement, but excluding a termination where there is a simultaneous reemployment by Fluence or one of its Subsidiaries of the Employee and/or the Employee becomes a Director. The Administrator shall determine the effect of all matters and questions relating to Termination of Employment for purposes of the Plan, including, but not by way of limitation, the question of whether a Termination of Employment resulted from a discharge for Cause for purposes of the Plan, and all questions of whether a particular furlough or leave of absence constitutes a Termination of Employment for purposes of the Plan.

 

2.19      “Termination of Services” shall mean the time of any Termination of Employment, Termination of Consultancy or Termination of Directorship, as applicable, following which a Participant no longer provides any services to Fluence or any Subsidiary thereof as (a) an Employee, (b) a Consultant, or (c) a Director.

 

2.20        “Transfer” means any sale, transfer, assignment, pledge, mortgage, exchange, hypothecation, grant of a security interest or other direct disposition or encumbrance of an interest (whether with or without consideration, whether voluntarily or involuntarily or by operation of law). The terms “Transferee,” “Transferor,” “Transferred,” and other forms of the word “Transfer” shall have the correlative meanings.

 

2.21        “Strike Price” of a Phantom Unit shall mean the amount designated as such in the applicable Award Agreement with respect to such Phantom Unit. To the extent any Award Agreement does not specify a Strike Price for Phantom Units granted thereunder, the Strike Price of such Phantom Units will equal $0.00.

 

2.22           “Units” shall mean the Class A-1 Units.

 

 

ARTICLE 3.

ADMINISTRATION.

 

3.1           This Plan shall be administered by the Board or its delegate appointed to serve as the administrator of this Plan pursuant to Section 3.3. Subject to the terms of this Plan and applicable law, and in addition to other express powers and authorizations conferred on the Administrator or any other Person by this Plan or the Fluence LLC Agreement, the Administrator shall have full power and authority to:

 

(a)            designate Participants;

 

(b)            designate those Affiliates or other entities whose officers, directors, managers, employees or consultant may participate in this Plan;

 

(c)            determine the number and type of Phantom Units to be covered by, or with respect to which payments, rights or other matters are to be calculated in connection with any award under this Plan;

 

(d)            determine the terms and conditions of any award under this Plan;

 

(e)            determine and/or adjust the vested portion of any award under this Plan;

 

(f)            determine whether, to what extent, and under what circumstances awards under this Plan may be settled in cash, other securities or other property, or canceled, forfeited or suspended and the method or methods by which the awards under this Plan may be settled, canceled, forfeited or suspended;

 

(g)            prescribe the form of each Award Agreement, which need not be identical for each Participant;

 

(h)            make appropriate adjustments in order to minimize the accounting impact of the Phantom Units and/or any other awards under this Plan;

 

(i)            interpret, administer, reconcile any inconsistency, correct any defect and/or supply any omission in this Plan and any instrument or agreement relating to, or any award made under, this Plan;

 

(j)            establish, adopt, or revise any rules, regulations and sub-plans as it may deem necessary or advisable to administer this Plan;

 

(k)           establish, amend, suspend or waive such rules, regulations and sub-plans and appoint such agents as it shall deem appropriate for the proper administration of this Plan or as necessary to accommodate the laws of another jurisdiction;

 

(l)            to the extent applicable, make any other determination or take any other action that the Administrator deems necessary or desirable for the administration of this Plan; and

 

 

3.2          Decisions Binding. Unless otherwise expressly provided in this Plan, all designations, determinations, interpretations and other decisions under or with respect to this Plan, any Award Agreement or any award made under this Plan shall be within the sole and absolute discretion of the Administrator, may be made at any time and shall be final, conclusive and binding upon all Persons, including Fluence and its Affiliates, any Participant, any holder of Phantom Units, and any holder or beneficiary of any award made under this Plan. Such designations, determinations, interpretations and decisions by the Administrator need not be the same with respect to each Participant (whether or not such Participants are similarly situated).

 

3.3            Delegation. Subject to the terms of this Plan, the Board may from time to time delegate to a committee of one or more officers of Fluence or any Affiliate the authority to grant or amend awards under this Plan or to take other administrative actions pursuant to this Article 3. Any delegation hereunder shall be subject to the restrictions and limits that the Board specifies at the time of such delegation, and the Board may at any time (a) act as the Administrator regardless of such delegation and/or (b) rescind the authority so delegated or appoint a new delegatee. At all times, the delegatee appointed under this Section 3.3 shall serve in such capacity at the pleasure of the Board. Notwithstanding the foregoing, the Board shall not delegate authority in respect of, and shall at all times be the administrator of the Plan for purposes of, all Phantom Units granted to Directors.

 

ARTICLE 4.

PHANTOM UNITS.

 

4.1            Phantom Units. Subject to adjustment as set forth in Article 7, the aggregate number of Phantom Units available for awards under this Plan shall equal 1,080,000 (as may be adjusted from time to time, the “Phantom Unit Pool”). If, after the Effective Date, any Phantom Unit (a) is forfeited or (b) has expired, terminated or been cancelled for any reason whatsoever, in each case, without any payment in respect thereof, then such Phantom Units shall again be available to be awarded hereunder by the Administrator, in its sole and absolute discretion.

 

ARTICLE 5.

ELIGIBILITY.

 

5.1            Eligible Persons. Any Person who is an officer, director, manager, employee, consultant or other independent contractor providing services to Fluence or any of its Affiliates shall be eligible to be designated as a Participant in this Plan by the Administrator.

 

ARTICLE 6.

PHANTOM UNIT AWARDS.

 

Unless otherwise determined by the Administrator, the following provisions are applicable to Phantom Units:

 

6.1            General Requirements for Phantom Units. Phantom Units will be awarded pursuant to an Award Agreement. The Administrator will, in its sole discretion, establish the terms and conditions of any Award Agreement, including (a) the number of Phantom Units subject to any award, and (b) the conditions upon which Phantom Units will vest, whether based on continued service over a period of time, Fluence (or any subsidiary or division thereof) or individual performance, or such other criteria as the Administrator deems appropriate.

 

 

6.2            Payment on Phantom Units. Unless otherwise set forth in the applicable Award Agreement:

 

(a)            Within thirty (30) days following vesting of such Phantom Units, Fluence shall (or shall cause one of its Affiliates (including, without limitation, the applicable Participant’s employing entity) to pay to each Participant an amount equal to (a) the number of vested Phantom Units held by such Participant as of the vesting date multiplied by (b) the excess of (i) the Fair Market Value of a Unit corresponding to such vested Phantom Units (the “Phantom Unit Value”), less (ii) the Strike Price of such Phantom Units. The Units corresponding to each Phantom Unit (and the Strike Price, if any) will be set forth in the applicable Award Agreement. To the extent the Phantom Unit Value of a Phantom Unit is less than or equal to the Strike Price at the time of vesting, such Phantom Unit will, unless otherwise determined by the Administrator, be cancelled for no consideration on the date of vesting.

 

(b)            To the extent the Fair Market Value for purposes of this Section 6.2 is determined upon the occurrence of a Liquidation Event (other than an Initial Public Offering), such Fair Market Value will be determined taking into account the aggregate consideration (including Deferred Consideration) received or eligible to be received in respect of the Units in such Liquidation Event and the Board shall be entitled to attribute any (or no) value to Deferred Consideration in its sole and absolute discretion. Notwithstanding the foregoing, to the extent determined appropriate by the Board, Fluence may elect to exclude consideration of any value attributable to Deferred Consideration from the determination of Fair Market Value for purposes of the payment contemplated by Section 6.2(a) and, in lieu thereof, provide that (A) any portion of the Deferred Consideration payable in respect of Units in a Liquidation Event (other than an Initial Public Offering) will be payable to holders of vested Phantom Units at such time or times and on such terms and conditions as the Deferred Consideration is paid generally to holders of corresponding Units (but, to the extent required by Section 409A of the Code, in no event later than five (5) years after the consummation of the Liquidation Event (and any amounts otherwise payable beyond such fifth anniversary shall be forfeited to the extent necessary to avoid the imposition of taxes on Participants under Section 409A of the Code)), and (B) the amount of Deferred Consideration payable per Phantom Unit as of any date shall equal the total Deferred Consideration payable on such date to a Unit corresponding to such Phantom Unit.

 

(c)            Form of Payment. Any payment due to a Participant in accordance with this Section 6.2 may be paid in cash or, subject to applicable securities laws, any such other form of consideration deemed appropriate by the Administrator, including without limitation, securities of any acquiring or successor entity(ies) or any Affiliate(s) thereof.

 

6.3            Restrictions on Transfer. Except as otherwise agreed by the Administrator or set forth in an Award Agreement, or Transfers upon death of the Participant to a Participant’s heirs, executors or administrators or to a trust under such Participant’s will, no Participant shall Transfer any Phantom Units awarded under this Plan and any such Transfer shall be void and unenforceable against Fluence or any of its Affiliates.

 

 

ARTICLE 7.

ADJUSTMENTS

 

7.1            Adjustments for Changes and Certain Other Events. Notwithstanding anything to the contrary in any Award Agreement (but in all events subject to and to the extent permitted by applicable law, including Section 409A of the Code (if applicable)), in the event that the Administrator determines in its sole and absolute discretion that any (1) Liquidation Event, other sale, dividend or distribution (whether in the form of cash, Fluence Units, securities or other property), recapitalization, reorganization, merger, consolidation, combination, repurchase, liquidation, dissolution, issuance or exchange of Fluence Units, other ownership interests or other securities of Fluence, (2) other unusual or nonrecurring transaction or event affecting Fluence or the financial statements of Fluence, (3) change in any applicable laws or accounting principles affects the Phantom Units (or the Units corresponding thereto) such that an adjustment is necessary or appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this Plan or any Award Agreement, to facilitate such transaction or event in any way, or to give effect to such changes in applicable law or accounting principles, then the Administrator may in its sole and absolute discretion, either by the terms of the award or by action taken prior to the occurrence of such transaction or event, unilaterally take any one or more of the following actions:

 

(a)            To provide for the cancellation of any such award in exchange for either an amount of cash or other property with a value equal to the Fair Market Value of the vested portion of such award, as determined by the Administrator in its discretion; provided that, if such Fair Market Value of the vested portion of such award is equal to or less than zero dollars ($0), then the such award may be terminated without payment;

 

(b)            To provide that (i) such award will vest in whole or in part in connection with the applicable event, or (ii) the unvested portion of such award will terminate (without any requirement for payment of consideration) and cannot vest or become payable after the applicable event;

 

(c)            To provide that such award be assumed by the successor or surviving entity, or an Affiliate thereof, or shall be substituted for by awards the payment of which relates to the securities of the successor or surviving entity, or an Affiliate thereof, with appropriate adjustments as to the amount and kind of securities relating to any such payment, in all cases, as determined by the Administrator;

 

(d)           To make adjustments in the amount and kind of securities or property in respect of which payment is related for purposes of outstanding awards, and/or in the terms and conditions of, and the criteria included in, outstanding awards or awards which may be granted in the future (including, without limitation, with respect to the Phantom Unit Pool, the Strike Price and vesting terms and conditions).

 

 

7.2            Reservation of Rights. Except as expressly provided in the Plan, an applicable Award Agreement or pursuant to action of the Administrator under the Plan, (a) no Participant shall have any rights by reason of any subdivision or consolidation of Fluence Units, the payment of any distribution, any increase or decrease in the number of Fluence Units of any class or any dissolution, liquidation, merger or consolidation of Fluence or any other Person, and (b) no issuance by Fluence of Fluence Units of any class, or securities convertible into Fluence Units of any class, or any Phantom Units (or similar equity-based arrangements) shall affect, and no adjustment by reason thereof shall be made with respect to, the number of Phantom Units subject to an award. The existence of the Plan, any Award Agreements and the awards granted hereunder shall not affect or restrict in any way the right or power of Fluence and its Affiliates to make or authorize (i) any adjustment, recapitalization, reorganization or other change in Fluence’s capital structure or its business, (ii) any merger, consolidation, dissolution or liquidation of Fluence or sale of Fluence assets or (iii) any sale or issuance of securities, including securities with rights superior to those of the Units or that are convertible into or exchange for Fluence Units. The Administrator may in its discretion treat Participants and awards (or portions thereof) differently under this Article 7.

 

ARTICLE 8.

AMENDMENT AND TERMINATION.

 

8.1          The Board may amend, alter, suspend, discontinue, or terminate this Plan or any portion thereof at any time; provided that, any such amendment, alteration, suspension, discontinuance or termination that would materially adversely affect the rights of any Participant shall not to that extent be effective without the written consent of holders of a majority-in-interest of the Phantom Units held by all such adversely affected Participants, taking in account, for such purpose, all such outstanding interests, whether or not then vested. Notwithstanding the foregoing or any other provision of this Plan, (a) no consent shall be required with respect to an amendment made to conform this Plan to the Fluence LLC Agreement, as currently in effect or as such agreements may subsequently be amended, (b) the Board may increase or otherwise modify the aggregate number of Phantom Units available for issuance under this Plan without the consent of any Participant, and (c) Fluence may assign any of its rights or obligations under the Plan or any Award Agreement without the consent of any Participant to any successor or any of its Affiliates in connection with any Liquidation Event or similar event or circumstance, or to any of the Affiliates of Fluence (including, without limitation, the employing entity of any Participant) and following any such assignment, Fluence shall no longer have any liability with respect to the rights and obligations so assigned.

 

8.2            Nothing in this Plan or in any Award Agreement shall limit or otherwise affect the ability to amend or modify the Fluence LLC Agreement in accordance with its terms (including, without limitation, any amendment or modification of the rights and obligations of the Class A-1 Units thereunder (including any applicable tag-along, drag-along, registration, lock-up, right of first refusal or other similar rights associated with such Class A-1 Units) and any amendment to increase the number of outstanding Fluence Units or to add a new class of Fluence Units, including any class with rights superior to those of the Units) and no consent or action from any holder of Phantom Units shall be required in order to effect any such amendment or modification.

 

 

ARTICLE 9.

GENERAL PROVISIONS.

 

9.1            No Rights to Awards. No Person shall have any claim to receive any award under this Plan. There is no obligation for uniformity of treatment of Participants regarding the number of Phantom Units awarded or the manner in which awards are made. The terms and conditions of awards made under this Plan need not be the same with respect to each Participant.

 

9.2            Taxation.

 

(a)            A Participant may be required to pay to Fluence or any of its respective Affiliates, and Fluence, and its respective Affiliates shall have the right and are hereby authorized to withhold from any payment due in respect of, or Transfer made with respect to, any Phantom Units, or from any other amount owing to a Participant (including in connection with any Transfers), the amount (in cash, securities or other property, as determined by the Administrator) of any applicable taxes in respect of Phantom Units or any payment or Transfer under an Award Agreement or this Plan and to take such other action as may be necessary in the opinion of the Administrator to satisfy all obligations for the payment of such taxes. Each Participant shall indemnify Fluence and its Affiliates against any and all liability for withholding tax, income tax, and any other taxes (including, Federal, State and local and foreign taxes, social security or insurance contributions and employee National Insurance contributions) that are attributable to (i) the grant or vesting of or any other benefit derived by the Participant from, Phantom Units or (ii) any payment made, directly or indirectly, to the Participant in respect of any Phantom Units.

 

(b)            To the extent applicable, the Plan and Award Agreements shall be interpreted in accordance with Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of the Plan to the contrary, in the event that the Board determines that any Phantom Units may be subject to Section 409A of the Code, the Board may adopt such amendments to the Plan and the applicable Award Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, that the Board determines are necessary or appropriate to (a) exempt the Phantom Units from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Phantom Units, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance and thereby avoid the application of penalty taxes under such Section 409A. Notwithstanding anything herein to the contrary, no provision of the Plan or any Award Agreement shall be interpreted or construed to transfer any liability for failure to comply with the requirements of Section 409A of the Code from any Participant or other Person to Fluence or any of its Affiliates, employees or agents.

 

(c)            Payments under the Plan are intended to be exempt from or comply with the requirements of Section 409A of the Code, to the extent applicable, and shall be interpreted accordingly. Notwithstanding any provision of the Plan to the contrary, in the event that following the Effective Date, the Administrator nevertheless determines that any Phantom Units may be or become subject to Section 409A of the Code, the Administrator is hereby authorized (without any obligation to do so or to indemnify any Participant for failure to do so), in its discretion, to adopt such amendments to the Plan and/or the applicable Award Agreement(s) or to adopt such other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions that the Administrator determines to be necessary or appropriate to cause the Phantom Units to comply with or be exempt from Section 409A of the Code and thereby avoid the application of penalty taxes thereunder. Nothing in the Plan or any Award Agreement shall transfer any liability in respect of Section 409A of the Code from any Participant or other Person to Fluence or any of its Affiliates or any of their respective directors, employees or representatives.

 

 

9.3           No Limit on Other Compensation Arrangements. The adoption of this Plan shall not affect any other compensation or incentive plans in effect for Fluence or any Affiliate. Nothing in this Plan shall be construed to limit the right of Fluence or any Affiliate (a) to establish any other forms of incentives or compensation for managers, employees or consultants of Fluence or any Affiliate; or (b) to grant or assume options otherwise than under this Plan in connection with any proper corporate purpose, including, but not by way of limitation, the grant or assumption of options in connection with the acquisition by purchase, lease, merger, consolidation or otherwise, of the business, stock or assets of any corporation, firm or association.

 

9.4           No Right to Employment or Service. No award made hereunder shall be construed as giving a Participant the right to be retained in the service of, or in any other continuing relationship with, Fluence or any of its Affiliates nor interferes with or restricts in any way the rights of Fluence or any of its Affiliates, which rights are hereby expressly reserved, to discharge or terminate the services of a Participant at any time for any reason whatsoever, with or without Cause, except to the extent expressly provided otherwise in a written agreement between the Fluence or any of its Affiliates.

 

9.5            Unfunded Plan. Nothing in the Plan or any Award Agreement shall entitle a Participant to payment of any specified property or payment out of a trust fund or other security device created for the benefit of Participants. Any claim to payment which a Participant has with respect to Phantom Units shall be only as a general creditor of Fluence. Fluence’s obligations under the Plan are both unfunded and unsecured. Subject to any assignment consistent with Section 8.1, the liability for payment with respect to Phantom Units is a liability of Fluence alone and not of any of its Affiliates or any employee, officer, director, member of Fluence or any of its Affiliates.

 

9.6           Not Fluence Units. No Participant or successor in interest shall be deemed to be a member of Fluence or have any right to receive any securities of Fluence by virtue of the Plan or any award hereunder. Phantom Units represent only a potential payment in the form set forth in Section 6.2(c) that may become payable on the terms and conditions set forth in the Plan and the applicable Award Agreement. Awards under the Plan shall not represent actual units or other equity interests in Fluence or a security interest in any of the assets held by Fluence. Notwithstanding the foregoing or anything to the contrary contained herein or in any Award Agreement, if the Committee determines that a Phantom Unit or the form of payment with respect to a Phantom Unit shall constitute a security of Fluence, its successors, or any other entities, no such security shall be issued to any Participant unless such security is then registered under the Securities Act and applicable state securities laws or, if such security is not then so registered, the Committee has determined that such issuance would be exempt from the registration requirements of the Securities Act and applicable state securities laws.

 

 

9.7            Special Incentive Compensation. By acceptance of an award hereunder, each Participant shall be deemed to have agreed that (a) such award is special incentive compensation that will not be taken into account, in any manner, as salary, compensation or bonus in determining the amount of any payment under any pension, retirement, life insurance, disability, severance or other employee benefit plan of Fluence or any of its Affiliates and (b) on his or her behalf and on behalf of each of his or her beneficiaries that such award will not affect the amount of any life insurance coverage, if any, provided by any Person on the life of the Participant that is payable to his or her beneficiaries under any life insurance plan. This Plan is not a “retirement plan” or “welfare plan” under the Employee Retirement Income Security Act of 1974, as amended.

 

9.8            No Trust or Fiduciary Relationship Created. Neither this Plan nor any award made under this Plan shall create or be construed to create a trust or a fiduciary relationship between Fluence or any of its Affiliates and a Participant or any other Person.

 

9.9            Limitations on Liability. Notwithstanding any other provisions of the Plan, no individual acting as a manager, director, equityholder, officer, other employee, representative or agent of Fluence or any Affiliate of Fluence will be liable to any current or former Participant or any spouse, beneficiary or immediate family member thereof, or any other Person for any claim, loss, liability, or expense incurred in connection with the Plan, any Award Agreement or any award, nor will such individual be personally liable with respect to the Plan or any Award Agreement because of any contract or other instrument he or she executes in his or her capacity as an Administrator, manager, director, equityholder, officer, other employee, representative or agent of Fluence or any Affiliate of Fluence. Fluence will indemnify and hold harmless each manager, director, equityholder, officer, other employee, representative and agent of Fluence or any Affiliate of Fluence to whom any duty or power relating to the administration or interpretation of the Plan or any Award Agreement has been or will be granted or delegated, against any cost or expense (including attorneys’ fees) or liability (including any sum paid in settlement of a claim with the Administrator’s approval) arising out of any act or omission to act concerning this Plan unless arising out of such Person’s own fraud or bad faith or otherwise limited by applicable law.

 

9.10           Governing Law. To the extent not preempted by federal law, the Plan shall be construed in accordance with and governed by the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof, or principles of conflicts of law of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware.

 

9.11           Severability. In the event any portion of the Plan or any action taken pursuant thereto shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced as if the illegal or invalid provisions had not been included, and the illegal or invalid action shall be null and void.

 

9.12           Interpretation. The language in this Plan shall be construed as a whole and according to its fair meaning. Any presumption or principle that such language is to be construed against Fluence or a Participant shall not apply. The headings in the Plan are used solely as a convenience to facilitate reference and shall not be deemed in any way material or relevant to the construction or interpretation of this Plan or any provision thereof. Any references to articles, paragraphs, subparagraphs, sections or subsections are to those parts of this Plan, unless the context clearly indicates to the contrary. Also, unless the context clearly indicates to the contrary, (a) the plural includes the singular and the singular includes the plural; (b) “and” and “or” are each used both conjunctively and disjunctively; (c) “any,” and “all” shall mean “any and all”; (d) “includes” and “including” are each “without limitation”; (e) “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” refer to the entire Plan and not to any particular paragraph, subparagraph, section or subsection; and (f) all pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the Persons referred to may require.

 

 

9.13            Relationship between Plan and Award Agreements. In the event of a conflict between any term or provision contained herein and a term or provision of an Award Agreement, the applicable terms and provisions of the Plan will govern and prevail (unless explicitly set forth to the contrary in such Award Agreement).

 

9.14           Electronic Delivery. Fluence may, in its sole discretion, deliver any documents or disclosures related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery.

 

9.15           Data Privacy. Fluence will hold, collect and otherwise process certain personal data as set out in Fluence’s privacy notice, which is on the intranet. All personal data will be treated in accordance with applicable data protection laws and regulations.

 

ARTICLE 10.

TERM OF THIS PLAN.

 

This Plan shall be effective as of December 23, 2020, the date the Plan was approved by the Board (the “Effective Date”).

 

 

SUB-PLAN TO

 

PHANTOM EQUITY INCENTIVE PLAN

 

FOR GERMAN PARTICIPANTS

 

In addition to the terms of the Plan and the Award Agreement, the Phantom Units issued to Participants located in Germany are subject to the following additional terms, conditions and provisions (this “Sub-Plan”).

 

Article 2 shall be revised to include the following defined term:

 

“Taxes” has the meaning given to such term in Section 9.2(a).

 

Section 9.2(a) shall be replaced with the following:

 

(a)           Each Participant shall indemnify Fluence and its Affiliates against any and all liability for withholding tax, income tax, and any other taxes, including, Federal, State and local and foreign taxes, social security or insurance contributions and employee National Insurance contributions (together “Taxes”) that are attributable to (i) the grant or vesting of or any other benefit derived by the Participant from, Phantom Units or (ii) any payment made, directly or indirectly, to the Participant in respect of any Phantom Units. Fluence, and any of its respective Affiliates shall have the right and are hereby authorized to withhold from any payment due in respect of, or Transfer made with respect to, any Phantom Units, or from any other amount owing to a Participant (including in connection with any Transfers), the amount (in cash, securities or other property, as determined by the Administrator) of any applicable Taxes in respect of Phantom Units or any payment or Transfer under an Award Agreement or this Plan and to take such other action as may be necessary in the opinion of the Administrator to satisfy all obligations for the payment of such Taxes.

 

 

PHANTOM UNIT AWARD AGREEMENT

UNDER THE

FLUENCE ENERGY, LLC PHANTOM EQUITY INCENTIVE PLAN

 

This Phantom Unit Award Agreement (this “Agreement”) by and among Fluence Energy, LLC, a Delaware limited liability company (“Fluence”) and [_______] (“Participant”), is entered into and made effective as of [_____] (the “Grant Date”) pursuant to the Fluence Energy, LLC Phantom Equity Incentive Plan (the “Plan”). Capitalized terms used and not defined in this Agreement have the same meanings ascribed to such terms in the Plan, or if not defined in the Plan, in the LLC Agreement.

 

RECITALS

 

WHEREAS, Fluence has adopted the Plan and, pursuant to the Plan, may issue Phantom Units;

 

WHEREAS, Participant is employed by or otherwise provides service to Fluence or one or more of its direct or indirect Affiliates; and

 

WHEREAS, in connection with Participant’s provision of service to Fluence or one or more of its direct or indirect Affiliates, Fluence has agreed to grant Phantom Units to Participant on the terms set forth herein.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants contained herein and other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

1.            Grant of Phantom Units.

 

(a)            Grant of Phantom Units. Subject to the terms and conditions of this Agreement, Fluence hereby grants to Participant [___]Phantom Units (the “Phantom Units”), which correspond to Class A-1 Units and have a Strike Price equal to $[ n ], on the terms and conditions set forth herein and in the Plan.

 

(b)            Payment on Phantom Units. Each Phantom Unit, to the extent such Phantom Unit vests and is not forfeited as provided under this Agreement and the Plan, shall confer upon Participant the right to receive the payment provided under Section 6.2 of the Plan.

 

2.            Vesting and Forfeiture Provisions. The Phantom Units shall be subject to the following vesting and forfeiture provisions:

 

(a)            Units Subject to Vesting. The Phantom Units shall, unless otherwise determined by the Board, become vested upon a Liquidation Event, provided that the Participant remains continuously employed or engaged in active service by Fluence or any of its Subsidiaries (and no Termination of Services occurs) from the Grant Date through the consummation of such Liquidation Event. Phantom Units that vest pursuant to this Section 2(a) shall be referred to as “Vested Units.” Until all the Phantom Units become Vested Units in accordance with this Section 2(a), the unvested portion of the Phantom Units shall be “Unvested Units”.

 

 

(b)            Treatment of Unvested Units. Upon the Termination of Service of Participant for any reason, Participant’s Phantom Units that constitute Unvested Units, as of the date of such Termination of Service, shall be automatically forfeited and extinguished for no consideration without further action by Fluence on the date of such Termination of Service, and Participant shall have no further rights with respect to such Unvested Units.

 

3.            Restrictions on Transfer; Representations.

 

(a)            Transfer of Interest. In addition to (i) the restrictions on Transfer set forth in the Plan, and (ii) such special forfeiture conditions and other Transfer restrictions as the Board may determine, Participant shall not Transfer any Phantom Units (or any rights with respect thereto) without the prior written consent of the Board (except Transfers upon death of Participant to a Participant’s heirs, executors or administrators or to a trust under such Participant’s will).

 

(b)          Participant Representations. In connection with the issuance and acquisition of the Phantom Units under this Agreement, Participant hereby represents and warrants to Fluence as follows:

 

(i)              Participant has the legal capacity to execute, deliver and perform his or her obligations under this Agreement.

 

(ii)        Participant has been furnished with, and has had access to, such information as Participant considers necessary or appropriate regarding the terms and conditions of the issuance of the Phantom Units.

 

4.            Successors and Assigns. Except as otherwise expressly provided to the contrary in the Plan or this Agreement (and subject to any limitations on transferability in the Plan or this Agreement), the provisions of this Agreement shall inure to the benefit of, and be binding upon, Fluence and its respective successors and assigns and be binding upon Participant and Participant’s legal representatives, heirs, legatees, distributees, assigns and transferees by operation of law, whether or not any such person has become a party to this Agreement or has agreed in writing to join herein and to be bound by the terms, conditions and restrictions hereof.

 

5.            No Retention Rights. Nothing in this Agreement shall confer upon Participant any right to continue in service for any period of specific duration or interfere with or otherwise restrict in any way the rights of Fluence (or any direct or indirect subsidiary employing or retaining Participant) or of Participant, which rights are hereby expressly reserved by each, to terminate his or her service at any time and for any reason.

 

6.            Miscellaneous Provisions.

 

(a)            Governing Law. To the extent not preempted by federal law, the Plan shall be construed in accordance with and governed by the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof, or principles of conflicts of law of any other jurisdiction which could cause the application of the laws of any jurisdiction other than the State of Delaware.

 

(b)            Venue. Each party to this Agreement hereby irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement or any agreements or transactions contemplated hereby shall be brought exclusively in the courts of the State of Delaware or any United States federal court of the District of Delaware, and hereby expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and expressly waives any claim of improper venue and any claim that such courts are an inconvenient forum. Each party hereto hereby irrevocably consents to the service of process of any of the aforementioned courts in any such suit, action or proceeding by the mailing of notice in accordance with Section 6(d) of this Agreement.

 

 

(c)            WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT HE, SHE OR IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

(d)            Notices. All notices required or permitted to be given under this Agreement must be in writing and shall be deemed to have been given (i) three (3) days after the date mailed by registered or certified mail, addressed to the recipient, with return receipt requested, (ii) upon delivery to the recipient in person or by courier, (iii) upon receipt of a facsimile transmission by the recipient, or (iv) upon receipt of electronic mail by the recipient. Such notices, requests and consents shall be given (A) to Participant at his or her number, address or e-mail address in Fluence’s personnel records, or such other number, address or e-mail address as Participant may specify by notice to Fluence in accordance with this Section 6(d), and (B) to Fluence at the address of the principal office of Fluence at 4601 N. Fairfax Drive, Suite 600, Arlington, VA 22203, Attention: General Counsel with a copy to the Chief Human Resources Officer.

 

(e)            Section 280G.

 

(i)            Except as otherwise provided in subsection (ii) below, in the event that it shall be determined that any right to receive the Phantom Units, payment or other benefit under this Agreement (including, without limitation, the acceleration of the vesting of the Phantom Unit and taking into account the effect of this Section) or any employment or other agreement or arrangement by and between the Participant and Fluence or any of its Affiliates, to or for the benefit of the Participant (the “Payments”), would, in whole or part when aggregated with any other right, payment or benefit to or for the Participant under all other agreements or benefit plans of Fluence or any of its Affiliates or otherwise, be nondeductible by Fluence (or other Person making such payment or providing such benefit) as a result of Section 280G of the Code and/or would subject the Participant to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”) then, to the extent necessary to make the Payments deductible and to exempt the Payments from the Excise Tax (but only to such extent and after taking into account any reduction in the Payments relating to Section 280G of the Code under any other plan, arrangement or agreement), the Phantom Unit or any other right, payment or benefit under this Agreement shall not become vested or paid and, if requested, Participant shall execute a waiver in Fluence’s applicable form to effect this Section 6(e).

 

(ii)            Notwithstanding any other provision of this Agreement, the provisions of subsection (i) above shall not apply to reduce the Payments if the Payments that would otherwise be nondeductible under Section 280G of the Code and/or would subject the Participant to the Excise Tax are disclosed to and approved by the appropriate equityholders in accordance with Section 280G(b)(5)(B) of the Code and the Department of Treasury regulations thereunder.

 

 

(iii)            Fluence shall use commercially reasonable efforts to (i) prepare and deliver to (or cause to be prepared and delivered to) the applicable equityholders the disclosure required by Section 280G(b)(5)(B) of the Code with respect to the Payments and (i) seek the vote of such equityholders pursuant to subsection (b) above in a timely manner.

 

(f)            Section 409A. To the extent applicable, this Agreement shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, in the event that the Administrator determines that the Phantom Unit may be subject to Section 409A of the Code, the Administrator may adopt such amendments to this Agreement or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions that the Administrator determines are necessary or appropriate to (a) exempt the Phantom Units from Section 409A of the Code and/or preserve the intended tax treatment of the benefits provided with respect to the Phantom Units, or (b) comply with the requirements of Section 409A of the Code and related Department of Treasury guidance and thereby avoid the application of penalty taxes under such Section 409A. Notwithstanding anything herein to the contrary, in no event shall any liability for failure to comply with the requirements of Section 409A of the Code be transferred from the Participant or any other Person to Fluence or any of its Affiliates, employees or agents pursuant to the terms of this Agreement or otherwise.

 

(g)            Integration. Except as expressly provided otherwise, all of the terms and conditions set forth in the Plan shall apply to Participant and Participant expressly agrees to be bound by the terms of the Plan. This Agreement and the exhibits attached to this Agreement, together with the Plan, constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. The grant of the Phantom Units pursuant hereto satisfies any obligation of Fluence or any of its Affiliates to grant profits interest units, Phantom Units or similar or related awards to Participant in any prior agreement or understanding among the parties.

 

(h)            Waiver. Either party’s failure to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision, nor prevent that party from thereafter enforcing any other provision of this Agreement.

 

(i)            Reliance on Counsel and Advisors. Participant acknowledges that Participant has had the opportunity to review this Agreement, including all exhibits and attachments hereto, and the transactions contemplated by this Agreement with Participant’s own legal counsel, tax advisors and other advisors. Participant is relying solely on Participant’s own counsel and advisors and not on any statements or representations of Fluence or its agents for legal or other advice with respect to this investment or the transactions contemplated by this Agreement.

 

(j)            Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile or electronic copies of signed signature pages shall be binding originals.

 

(k)            Forfeiture. Notwithstanding anything to the contrary herein, if this Agreement is not executed and returned to Fluence by Participant within sixty (60) days after the Grant Date, the Phantom Units evidenced hereby shall be forfeited and return to the status of being available for grant under the Plan.

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Phantom Unit Award Agreement as of the Grant Date.

 

FLUENCE:
FLUENCE ENERGY, LLC,
a Delaware limited liability company
By:
	Name:
	Title:

 

[Signature Page to Phantom Unit Award Agreement]

 

 

PARTICIPANT:

 

 

 

___________________________

[PARTICIPANT NAME]

 

 

 

 

Exhibit 10.9

 

	4601 Fairfax Drive N, Suite 600 | Arlington, VA 22203   +1 833 358 3623
	fluenceenergy.com

 

September 23, 2021

 

 

Manuel Perez Dubuc

 

 

Dear Manuel:

 

Per our discussions, this letter agreement (the "Phantom Cancellation Letter") relates to that certain Phantom Unit Award Agreement, by and between Fluence Energy, LLC (the "Company") and you, dated April 2, 2021 (the "Award Agreement''), pursuant to which you were granted 20,700 Phantom Units (the "Phantom Units"), which are subject to the terms and conditions of the Award Agreement and the Fluence Energy, LLC Phantom Equity Incentive Plan.

 

This Phantom Cancellation Letter memorializes the mutual agreement between the Company and you to terminate the Award Agreement (and any rights thereunder) and you irrevocably waive, release and forfeit your rights to the Phantom Units. Such termination is in consideration for the Company's continued efforts to consider an initial public offering of the Company's securities, the sufficiency of which is hereby acknowledged and agreed by the parties, and is effective today. The Company and you acknowledge and agree that the Phantom Unit Award is not vested, no additional consideration is required to effect such termination, and the Company has no current or prospective liability in respect of the Phantom Unit Award.

 

This Phantom Cancellation Letter shall be governed by the laws of the State of Delaware. This Phantom Cancellation Letter may only be modified or amended by the written agreement of all parties hereto, and no waiver by a party hereto of any provision of this Phantom Cancellation Letter shall be effective unless confirmed in writing by such party.

 

Fluence Energy, LLC

 

By:

/s/ Francis A. Fuselier

Francis A. Fuselier 

SVP, General Counsel and Secretary

 

By:

/s/ Larissa Cerqueira

Larissa Cerqueira 

SVP and Chief Human Resources Officer

 

 

 

 

	4601 Fairfax Drive N, Suite 600 | Arlington, VA 22203   +1 833 358 3623
	fluenceenergy.com

 

Acknowledged and Agreed:

 

/s/ Manuel Perez Dubuc           Sept. 26, 2021

Manuel Perez Dubuc

 

 

 

Exhibit 10.10

 

 

PERSONAL & CONFIDENTIAL

 

October 27, 2017

 

Dennis Fehr 

Friedrich-Overbeck-Str. 4, 90455 Nürnberg

 

Dear Dennis,

 

I am pleased to confirm an offer from Siemens to you to become employed by Fluence Energy, LLC (“Fluence”) as Chief Financial Officer, based in Arlington, VA and reporting to Stephen Coughlin, Chief Executive Officer or his designee, subject to and upon the successful closing of the transaction between Siemens and The AES Corporation that forms and organizes Fluence. As you are currently employed by Siemens, your future employment with Fluence will not be subject to an additional reference or background check. This offer is contingent upon obtaining all necessary documents that will authorize your employment in the United States prior to your start date. The Human Resources department will coordinate the immigration process and keep you informed of the status.

 

You will be required to sign a Confidentiality and Proprietary Information Agreement prior to beginning employment with Fluence. In this position you will participate in, or be eligible for, the compensation and benefits outlined below and evaluated by current market data for your position as Chief Financial Officer for Fluence. The employment offer discussed in this letter is conditioned upon you remaining employed with Siemens at the time of the closing of the transactions forming and organizing Fluence. Shortly after such closing, it is expected that your employment with Siemens would be terminated and you would immediately thereafter be hired by Fluence. Your expected start date would be in January of 2018.

 

 

COMPENSATION AND BENEFITS

 

Base Salary: As Chief Financial Officer in Fluence, your initial base salary will be $275,000 USD. You will be paid monthly and your base salary will be reviewed annually in accordance with the Fluence policy and practice once established. You will be eligible for a salary adjustment in January 2019.

 

Annual Incentive Plan: As Chief Financial Officer, your annual bonus target will be 50% of your annual base salary earnings during the year. Bonuses will be awarded based upon annual individual performance and business performance measured against established objectives and they are typically paid in the first quarter following the end of each fiscal year. You will be evaluated for potential receipt of a pro rata annual bonus during the first quarter of 2019 based on 2018 personal performance and business performance. Your potential receipt of an annual bonus is subject to the discretion of Fluence and the amount of any award made to you will depend on a number of factors in addition to your individual performance, including your employment by Fluence at the time that such awards are made.

 

Benefits: You are eligible to participate in Fluence’s Health and Welfare Benefits Programs and Fluence’s short-term and long-term disability, accidental death and dismemberment, and life insurance plans, beginning on your first day of employment. Your portion of the cost will be made through automatic pre-tax and post-tax payroll deductions. Please note, if you do not enroll for medical and/or dental coverage within your first 30 days of employment, you will not have coverage for 2018.

 

Fluence Savings Plan: Upon transfer to Fluence, you will be eligible to participate in The Fluence Savings Plan which is a 401(k) plan after you receive your first paycheck. You may contribute up to 20% of your gross salary to your account in accordance with the terms and conditions of the Fluence Savings Plan and you will receive a company matching contribution of 100% of your contributions up to 5% of your gross salary.

 

Long Term Incentive Award: As Chief Financial Officer, you will be eligible for an annual long term performance cash incentive award under the LTI Plan with a target value equal to 50% of your annual base salary. The plan expected to be adopted is The Fluence Energy 2018 Annual Long Term Compensation Plan. Your potential receipt of such an award is subject to the terms and conditions of the long term incentive plan in place at the time any such grant is made to you and the discretion of Fluence Management. The amount of any such award will depend on a number of factors including your individual contribution to Fluence and your continued employment by Fluence at the time such awards are granted.

 

 

 

 

Performance Interests Plan Award: You are also eligible for a unique program being offered to key employees at the inception of Fluence. This Performance Interest Plan is a one-time award opportunity intended to reward key members of management with a highly competitive incentive plan based upon creation of value for the shareholders as measured by the strategic business plan over a 6-year period (2018 – 2023). You will be eligible for 12,000 units in the plan which will be subject to the terms and conditions of the Fluence Energy Performance Interests Plan.

 

 

Relocation: We will pay your reasonable relocation expenses according to the Siemens International Relocation Foreign Local Hire Policy. If you voluntarily terminate your employment with Fluence prior to completing 24 months of service following your start date with Fluence, you will be required to reimburse Fluence for your relocation expenses including the related taxes and deductions. Please refer to the Relocation Policy Package for more information. Relocation is intended to be completed to the Northern Virginia area. Your relocation must be completed and relocation benefits used within one year of your placement on US payroll.

 

 

ACCEPTANCE PROCESS

 

Dennis, your experience and background will be an asset to this position, and we look forward to you joining the leadership team of Fluence and working together to lead the energy storage market.

 

To confirm your acceptance of this offer, please call or email me and then sign and email a copy of all pages of this letter to Human Resources, attention of Darren Alfano by November 14^th, 2017. If you have any questions concerning the terms of this offer, please do not hesitate to contact me.

 

Dula Brian	Digitally signed by Dula Brian
	DN: serialNumber=Z000DBUJ,
	givenName=Brian, sn=Dula,
	o=Siemens, cn=Dula Brian
	Date: 2017.10.27 13:30:37 -04'00'

 

Siemens Medium 

Vice President of Medium Voltage

Brian Dula

 

Dennis Fehr

 

 

Exhibit 10.11

 

4601 N. Fairfax Drive, Suite 600 | Arlington, VA 22203 +1 (703) 682-6629 fluenceenergy.com

  

May 12, 2020

 

Rebecca Boll

 

Dear Rebecca

 

I am delighted to confirm an offer from Fluence, a Siemens and AES company, as Chief Product & Marketing officer reporting to Manuel Perez Dubuc, in Arlington, VA. Fluence requires certification of your eligibility to work in the United States and will require documents evidencing such eligibility from you. You will be required to complete a background check and sign a Confidentiality and Proprietary Information Agreement prior to beginning employment with Fluence. In this position you will participate in, or be eligible for, the compensation and benefits outlined below in accordance with the job being evaluated as Executive level.

 

COMPENSATION AND BENEFITS

 

Base Salary: Your position has been initially assigned an Executive in the Fluence structure. Your initial base salary will be $300,000. You will be paid monthly, and your base salary will be reviewed annually in accordance with the Fluence policy and practice.

 

Annual Incentive Plan: Your annual bonus target will be 40% of your annual base salary earnings during the year. Bonuses will be awarded based upon annual individual performance and business performance measured against established objectives and they are typically paid in the first quarter following the end of each fiscal year. Your potential receipt of an annual bonus is subject to the discretion of Fluence and the amount of any award made to you will depend on a number of factors in addition to your individual performance, including your employment by Fluence at the time that such awards are made.

 

Retirement: You will be eligible to participate in The Fluence Energy Savings Plan which is a 401(k) plan (the “Savings Plan”), after you receive your first paycheck. You may contribute up to 50% of your gross salary to your account in accordance with the terms and conditions of the Retirement Plan and you will receive a company matching contribution of 100% of your contributions up to 5% of your gross salary.

 

Long Term Incentive Award: As an Executive you will be eligible for an annual long-term performance cash incentive award under the LTI Plan with a target value equal to 40% of your annual base salary. Your potential receipt of such an award is subject to the terms and conditions of the long-term incentive plan in place at the time any such grant is made to you and the discretion of Fluence Management. The amount of any such award will depend on a number of factors including your individual contribution to Fluence and your continued employment by Fluence at the time such awards are granted.

 

Profits Interest Plan: At the current time Fluence has a Profits Interest Plan which you will be part of. Payments are approved by the Board and are based on cumulative targets through 2023. The Plan is currently being reviewed, and a substitute plan may be implemented. If implemented the new plan is intended to mimic the same earnings potential as in the Profits Interest Plan. You would be eligible to 10,000 units, contingent on Board approval.

 

 

 

 

 

 

ACCEPTANCE PROCESS

 

Rebecca, your experience and background will be an asset to this position, and we look forward to you joining Fluence.

 

To confirm your acceptance of this offer, please call or email me and then sign and email a copy of all pages of this letter to Human Resources, attention of Larissa Cerqueira, Larissa.Cerqueira@fluenceenergy.com within three business days of the date on this letter. If you have any questions concerning the terms of this offer, please do not hesitate to contact me.

 

Sincerely,
/s/ Larissa Cerqueira
Larissa Cerqueira
CHRO

 

Your employment with Fluence Energy, LLC. is and will be “at will” employment, for an indefinite period of time. This means that you or the Company may terminate the employment relationship at any time, for any reason or for no reason. No oral or written representation made by anyone at Fluence may change the “at will” nature of this relationship. You retain the option, as does Fluence, of ending your employment with Fluence at any time, with or without notice and with or without cause. This letter is governed by the laws of Virginia. Fluence is an “at will” employer; this letter does not constitute a contract for employment.

 

Read and Accepted:
Signature:
	Rebecca Boll
Date:
Start Date: June 8th, 2020

 

 

 

 

Exhibit 10.15

 

 

 

 

AMENDED AND RESTATED CREDIT SUPPORT AND REIMBURSEMENT

AGREEMENT

 

by and among

 

The AES Corporation,

 

Siemens Industry, Inc.,

 

and

 

Fluence Energy, LLC

 

 

 

Dated June 9, 2021

 

 

 

TABLE OF CONTENTS 

 

				Page
ARTICLE 1
DEFINED TERMS
1.1		Definitions		1
1.2		Interpretation		6
ARTICLE 2
CREDIT SUPPORT OBLIGATIONS
2.1		Provision of Credit Support		7
2.2		Process to obtain Credit Support from Credit Support Providers		8
2.3		Credit Support Fees		8
2.4		Reimbursement Obligations		9
2.5		Credit Support Delinquency		9
2.6		Payment Timing		10
2.7		Obligations Absolute		10
2.8		Change of Percentage Interest		11
ARTICLE 3
ADDITIONAL COVENANTS
3.1		Line of Credit		11
3.2		Advanced Amounts		11
ARTICLE 4
TERM
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1		Organization and Good Standing		12
5.2		Authorization		12
5.3		Legal Proceedings		12
5.4		No Conflict		12
5.5		Approvals and Filings		12
ARTICLE 6
MISCELLANEOUS
6.1		Entire Agreement; Effect on Prior Agreement		12
6.2		Further Actions; Cooperation		13
6.3		Costs and Expenses; Attorney’s Fees		13
6.4		Notices		13
6.5		Severability		15
6.6		Binding Nature; Assignment; Consent to Assignment; No Third Party Beneficiaries .		15
6.7		Amendments		15
6.8		Governing Law		15
6.9		Specific Performance		15
6.10		Counterparts		16

 

 

6.11		Public Announcements		16
6.12		Dispute Resolution		16
6.13		Execution and Delivery		18
6.14		Delays or Omissions		18

 

Schedule 1		Party Representatives
Schedule 2		Credit Support Fees

 

 

AMENDED AND RESTATED CREDIT SUPPORT AND REIMBURSEMENT

AGREEMENT

 

This AMENDED AND RESTATED CREDIT SUPPORT AND REIMBURSEMENT AGREEMENT (this “Agreement”), dated and effective as of June 9, 2021 (the “Effective Date”), is adopted, executed and agreed to by and among Fluence Energy, LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware (the “Company”), The AES Corporation, a corporation duly incorporated and validly existing under the laws of the State of Delaware (“AES”), and Siemens Industry, Inc., a corporation duly incorporated and validly existing under the laws of the State of Delaware (“Siemens”). The Company, AES and Siemens are each referred to herein as a “Party” and are collectively referred to herein as the “Parties.”

 

WHEREAS, the Company was formed for the purpose of globally marketing and selling stationary energy storage systems and solutions based on battery technology for utility-scale and commercial industrial applications and residential applications;

 

WHEREAS, in connection with its business activities, the Company is from time to time (i) required to furnish Credit Support (defined below) to certain of its counterparties and (ii) in need of a Line of Credit (defined below) and/or Advanced Amounts (defined below) to engage in certain activities;

 

WHEREAS, Siemens and AES Grid Stability LLC, a limited liability company duly organized and validly existing under the laws of the State of Delaware and wholly-owned subsidiary of AES, are the holders of the outstanding equity interests in the Company;

 

WHEREAS, AES, Siemens and the Company executed the original Credit Support and Reimbursement Agreement on January 1, 2018 (the “Prior Agreement”); and

 

WHEREAS, AES, Siemens and the Company now wish to amend and restate the Prior Agreement to set forth the revised provisions regarding the rights, powers and interests of the Parties with respect to (i) furnishing Credit Support on behalf of the Company from time to time and (ii) supporting the Company in other ways described in this Agreement.

 

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby covenant and agree as follows:

 

ARTICLE 1 

DEFINED TERMS

 

1.1 Definitions. The terms used in this Agreement, with their initial letters capitalized, shall, unless the context thereof otherwise requires, have the meanings specified in this Section 1.1.

 

 

“AAA” shall have the meaning assigned to such term in Section  6.12(b).

 

“Advanced Amount” shall have the meaning assigned to such term in Section 3.2.

 

“AES” shall have the meaning assigned to such term in the first paragraph of this Agreement.

 

“Affiliate” means, at any time, and with respect to any Person or group of Persons, a Person that at such time directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with such Person or group of Persons. Notwithstanding the foregoing, for purposes of this Agreement, no member of the Company nor any Affiliate thereof, by virtue of being a member of the Company, shall be considered an Affiliate of another member or another member’s Affiliates. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company. No Person shall be considered an Affiliate of another Person or under the Control of such other Person so long as (i) it is owned less than 50% by such other Person, (ii) such other Person has no capacity to elect or appoint the majority of the board of directors or similar governing body of the subject Person, (iii) such other Person does not consolidate the subject Person in its financial reporting and (iv) there is no other management or services agreement pursuant to which such other Person exerts control over the subject Person. With respect to Siemens, none of Gamesa Corporación Technológica S.A., Siemens Healthineers AG nor any of their respective Subsidiaries shall be considered an Affiliate of Siemens.

 

“Agreement” shall have the meaning assigned to such term in the first paragraph of this Agreement.

 

“Allocable Share” means, as of any date of determination, for each Credit Support Provider, the product obtained by multiplying (i) one hundred percent (100%) by (ii) the quotient obtained by dividing (A) such Credit Support Provider’s Percentage Interest by (B) the aggregate Percentage Interests held by all Credit Support Providers. For example, if the Credit Support Providers hold an aggregate 90% Percentage Interest in the Company, a Credit Support Provider that holds a 45% Percentage Interest in the Company would have an Allocable Share of 50%.

 

“Applicable Law” means any applicable constitutional provision, statute, act, code (including the Code), law, regulation, rule, ordinance, order, decree, ruling, proclamation, resolution, judgment, decision, declaration, or interpretative or advisory publication of a Governmental Authority having valid jurisdiction.

 

“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to close.

 

“Capital Lease” of any Person means any lease of any property (whether real, personal or mixed) by that Person as lessee which, in conformity with GAAP, is, or is required to be, accounted for as a capital lease on the balance sheet of that Person, together with any renewals of such leases (or entry into new leases) on substantially similar terms.

 

 

“Capitalized Lease Obligations” means the amount of the liability reflecting the aggregate discounted amount of future payments under all Capital Leases calculated in accordance with GAAP, including Statement Nos. 13 and 98 of the Financial Accounting Standards Board.

 

“Code” means the Internal Revenue Code of 1986, as amended from time to time. All references herein to sections of the Code shall include any corresponding provision or provisions of succeeding law.

 

“Company” shall have the meaning assigned to such term in the first paragraph of this Agreement.

 

“Company LLC Agreement” means the Second Amended and Restated Limited liability Company Agreement of the Company, dated as of June 9, 2021, as the same may be amended and/or restated from time to time.

 

“Control” means, with respect to the relationship between two or more Persons, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, as trustee or executor, by contract or otherwise. The terms “Controlled” or “under common Control with” have correlative meanings.

 

“Credit Support” means Performance Guarantees, Financial Guarantees, letters of credit, bonds, surety, cash collateral or other forms of credit support as may be mutually agreed by the Parties from time to time.

 

“Credit Support Counterparty” means the beneficiary of any Credit Support furnished by a Credit Support Provider on behalf of the Company.

 

“Credit Support Fee” shall have the meaning assigned to such term in Section  2.3.

 

“Credit Support Obligation” means any obligation of the Company supported, directly or indirectly, by Credit Support furnished by a Credit Support Provider pursuant to this Agreement.

 

“Credit Support Payment” shall have the meaning assigned to such term in Section  2.4.

 

“Credit Support Provider” shall have the meaning assigned to such term in Section  2.1.

 

“Curing Party” shall have the meaning assigned to such term in Section 2.5.

 

“Cure Payment” shall have the meaning assigned to such term in Section 2.5.

 

“Default Rate” means, with respect to any date, the rate per annum equal to the lesser of (i) two percent (2%) over the Interest Rate and (ii) the maximum rate of interest permitted by Applicable Law.

 

“Delinquent Party” shall have the meaning assigned to such term in Section 2.5.

 

“Dispute” shall have the meaning assigned to such term in Section 6.12(a).

 

 

“Effective Date” shall have the meaning assigned to such term in the first paragraph of this Agreement.

 

“Financial Guarantee” means a guarantee by a Credit Support Provider of any Indebtedness of the Company.

 

“GAAP” means generally accepted accounting principles in the United States of America as from time to time in effect, including the statements and interpretations of the United States Financial Accounting Standards Board, consistently applied throughout the periods involved.

 

“Governmental Authority” means a federal, state, local or foreign governmental authority (including any regulatory authority); a state, province, commonwealth, territory or district thereof; a county; a city, town, township or other municipality; a district, ward or other subdivision of any of the foregoing; any executive, legislative or other governing body of any of the foregoing; any agency, authority, board, department, system, service, office, commission, committee, council or other administrative body of any of the foregoing; any court or other judicial body; and any officer, official or other representative of any of the foregoing.

 

“Indebtedness” means, with respect to the Company, all of the following with respect to the Company and its Subsidiaries (without duplication): (i) indebtedness for borrowed money; (ii) indebtedness evidenced by notes, debentures or similar instruments, including capitalized interest and the accredited amount of original issue discount, if any; (iii) Capitalized Lease Obligations; (iv) the deferred purchase price of assets, services or securities; (v) reimbursement obligations, whether contingent or matured, with respect to letters of credit, bankers acceptances, surety bonds, other financial guarantees and Interest Rate Protection Agreements (without duplication of other Indebtedness supported or guaranteed thereby); (vi) all obligations to pay a specified purchase price for goods or services whether or not delivered or accepted, e.g., take-or-pay and similar obligations; (vii) liabilities secured by any Lien existing on property owned or acquired by such specified Person, whether or not the liability secured thereby shall have been assumed; and (viii) all guarantees in respect of Indebtedness of others; provided, however, that Indebtedness shall not include trade payables and accrued expenses in each case arising in the ordinary course of business of the Company and not overdue by more than sixty (60) days.

 

“Indemnified Credit Support Provider” shall have the meaning assigned to such term in Section  2.1.

 

“Indemnifying Credit Support Provider” shall have the meaning assigned to such term in Section  2.1.

 

“Indemnity Amount” shall have the meaning assigned to such term in Section  2.1.

 

“Indemnity Demand” shall have the meaning assigned to such term in Section  2.1.

 

“Initial Expiration Date” shall have the meaning assigned to such term in Article 4.

 

“Interest Rate” means, with respect to any date, the rate per annum equal to the lesser of (i) two percent (2%) over the rate identified in the final Eastern edition of The Wall Street Journal for such date under “Money Rates” as the “Prime Rate” (or, if no such rate is identified, the “Prime Rate” as published by Citibank N.A. or its successor at its New York office), and (ii) the maximum rate of interest permitted by Applicable Law.

 

 

“Interest Rate Protection Agreement” means any interest rate swap, interest rate cap, interest rate hedge or other contractual arrangement that converts variable interest rates into fixed interest rates, fixed interest rates into variable interest rates or other similar arrangements.

 

“Lien” or “Liens” means, with respect to any specified Person: (i) any lien, encumbrance, mortgage, pledge, charge or security interest of any kind upon any property or assets of such specified Person, whether now owned or hereafter acquired, or upon the income or profits therefrom; (ii) the acquisition of, or the agreement to acquire, any property or asset upon conditional sale or subject to any other title retention agreement, device or arrangement (including a Capital Lease); (iii) the sale, assignment, pledge or transfer for security of any accounts, general intangibles or chattel paper of such specified Person, with or without recourse; and (iv) the transfer of any tangible property or assets for the purpose of subjecting such items to the payment of previously outstanding Indebtedness in priority to payment of the general creditors of such specified Person.

 

“Line of Credit” shall have the meaning assigned to such term in Section 3.1.

 

“New Member” shall have the meaning assigned to such term in Section 2.8.

 

“Party” and “Parties” shall have the meaning assigned to such terms in the first paragraph of this Agreement.

 

“Percentage Interest” means, as of any date of determination, for each Credit Support Provider, the product obtained by multiplying (i) one hundred percent (100%) by (ii) the quotient obtained by dividing (A) the number of Units held by such Credit Support Provider and its Affiliates, as applicable, by (B) the total number of all Units then outstanding.

 

“Performance Guarantee” means a guarantee issued by a Credit Support Provider hereunder that is not a Financial Guarantee (e.g., a guarantee to ensure the full and due performance of a contract).

 

“Person” means any individual, partnership, joint venture, company, corporation, limited liability company, limited duration company, limited life company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof, and shall include any successor (by merger or otherwise) of such entity.

 

“Reimbursement Demand” shall have the meaning assigned to such term in Section  2.4.

 

“Rules” shall have the meaning assigned to such term in Section  6.12(b).

 

“Siemens” shall have the meaning assigned to such term in the first paragraph of this Agreement.

 

“Tax” or “Taxes” means all taxes, including all duties, levies, assessments or similar charges in the nature of taxes, imposed by any Governmental Authority, including income, gross receipts, excise, property, sales, gain, use, license, transfer, environmental, production, custom duty, unemployment, corporation, capital stock, transfer, franchise, payroll, withholding, social security, minimum, estimated, ad valorem, profit, gift, severance, value added, disability, recapture, occupancy, retaliatory or reciprocal, guaranty fund assessments, credit, occupation, leasing, employment, stamp, goods and services, utility and other taxes, including any interest, penalties or additions attributable thereto.

 

 

“Term” shall have the meaning assigned to such term in Article 4.

 

“Third Party” means any Person other than the Parties hereto and their respective Affiliates.

 

“Unit” shall have the meaning set forth in the Company LLC Agreement.

 

1.2          Interpretation.

 

(a)        When a reference is made in this Agreement to an Article, Section or clause of, Exhibit or Schedule, such reference shall be to an Article, Section or clause of, Exhibit or Schedule to this Agreement unless otherwise indicated, and the words “Agreement,” “hereby,” “herein,” “hereof,” “hereunder” and words of similar import refer to this Agreement as a whole (including any Exhibits) and not merely to the specific section, paragraph or clause in which such word appears. The table of contents and the Article, Section and paragraph headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and do not in any way affect the meaning or interpretation of this Agreement. The phrases “the date of this Agreement,” “the date hereof” and terms of similar import, shall be deemed to refer to the date first written above. References to any statute are to that statute, as amended from time to time, and to the rules and regulations promulgated thereunder. Unless otherwise expressly provided herein, references to any agreement or document shall be a reference to such agreement or document as amended, modified or supplemented and in effect from time to time and shall include reference to all exhibits, schedules and other documents or agreements attached thereto or incorporated therein, including waivers or consents. Unless otherwise expressly provided herein, references to any Person include the successors and permitted assigns of that Person. Whenever the content of this Agreement permits, the masculine gender shall include the feminine and neuter genders, and a reference to singular or plural shall be interchangeable with the other. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. As used in this Agreement: (i) the term “including” and words of similar import mean “including, without limitation” unless otherwise specified, (ii) “$” and “dollars” refer to the currency of the United States of America and (iii) “any” shall mean “one or more”. Unless the defined term “Business Days” is used, references to “days” in this Agreement refer to calendar days.

 

(b)        The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

 

 

(c)        No summary of this Agreement prepared by or on behalf of any Party shall affect the meaning or interpretation of this Agreement.

 

ARTICLE 2 

CREDIT SUPPORT OBLIGATIONS

 

2.1          Provision of Credit Support.

 

(a)        During the Term, upon the mutual agreement of AES, Siemens and any New Member that chooses to execute a joinder to this Agreement in accordance with Section 2.8 hereto (each, a “Credit Support Provider”), the Credit Support Providers may furnish, or cause one of their respective Affiliates or a Third Party guarantor that has equivalent or better credit or which is otherwise reasonably acceptable to each Credit Support Provider, to furnish Credit Support to the Company pursuant to the terms of this Agreement, which the Company may use in its sole discretion, subject to the terms of this Agreement. For sake of clarity, the Parties agree that no Credit Support shall be provided by or on behalf of the Credit Support Providers pursuant to this Agreement unless both AES and Siemens agree that such Credit Support shall be provided to the Company pursuant to this Agreement. Further, the decision to agree to provide, or not to provide, such Credit Support shall be within the sole discretion of the Credit Support Providers. Credit Support provided pursuant to this Agreement may take the form of direct issuances of Credit Support by or on behalf of a Credit Support Provider to or for the benefit of the intended beneficiaries of such Credit Support, or may take the form of Credit Support issued by one or more Credit Support Providers to backstop Credit Support facilities issued by financial intuitions in favor of the Company. The Parties acknowledge and agree that, without limiting the application of Section 2.1(b) below, the actual amount of Credit Support provided in any particular circumstance does not need to match the Percentage Interests of the applicable Credit Support Provider and that in fact the Parties anticipate that in some cases one Credit Support Provider may provide 100% of the applicable Credit Support for any particular obligation.

 

(b)        For sake of clarity, the Parties acknowledge and agree that any liability that results in a claim against any Credit Support provided by or on behalf of a Credit Support Provider pursuant to Section 2.1(a) shall be subject to reimbursement by the Company in accordance with Section 2.4, and otherwise, as among the Credit Support Providers, shall be apportioned between all Credit Support Providers on the basis of their respective Allocable Shares at the time such claim is made, regardless of whether each Credit Support Provider participated in providing the underlying Credit Support. Accordingly, the Credit Support Providers hereby agree to cross indemnify each other, such that each Credit Support Provider (as applicable, an “Indemnifying Credit Support Provider”) shall indemnify and hold harmless the other Credit Support Providers (as applicable, each an “Indemnified Credit Support Provider”) from and against any claims made with respect to Credit Support provided pursuant to this Agreement (regardless of which Credit Support Provider furnished or caused to be furnished such Credit Support), to the extent such claims exceed an amount equal to the product of (i) the amount of the applicable claim and (ii) the Indemnified Credit Support Provider’s Allocable Share. In the event that the Indemnified Credit Support Provider makes a payment in respect of a claim subject to indemnification hereunder, it shall furnish the Indemnifying Credit Support Provider(s) with a written notice (an “Indemnity Demand”) indicating the amount of such payment and the amount of the indemnity obligation hereunder (the “Indemnity Amount”), together with supporting documentation detailing the Indemnity Amount for each Indemnifying Credit Support Provider. Within fifteen (15) days after receipt of the Indemnity Demand, the Indemnifying Credit Support Provider(s) shall pay to the Indemnified Credit Support Provider, by wire transfer of immediately available funds, the applicable Indemnity Amount together with interest thereon. Interest shall accrue on the Indemnity Amount at the Default Rate from the date so paid by the Indemnified Credit Support Provider to but not including the date such amount is paid by the Indemnifying Credit Support Provider to the Indemnified Credit Support Provider.

 

 

(c)        Notwithstanding anything to the contrary herein, if AES and Siemens fail to mutually agree on providing Credit Support pursuant to this Agreement, but one Credit Support Provider nonetheless desires to furnish Credit Support to the Company, such Credit Support Provider may, in its sole discretion, provide Credit Support to the Company outside the scope of this Agreement under separately negotiated terms without the consent of the other Credit Support Provider so long as the necessary approval requirements under the Company LLC Agreement, if any, are received. For sake of clarity, any Credit Support so provided outside the scope of this Agreement shall not be subject to the cross indemnification contemplated by Section  2.1(b) hereof or otherwise subject the non-participating Credit Support Provider to any liability arising out of any claims made on such Credit Support.

 

2.2           Process to obtain Credit Support from Credit Support Providers. During the Term, if the Company desires to request Credit Support from the Credit Support Providers (each, a “Credit Support Request”), it shall do so by providing written notice thereof, together with all reasonable supporting documentation, to the Siemens representative identified on Schedule 1 attached hereto in the case of Siemens (the “Siemens Representative”), and to the AES representative identified on Schedule 1 attached hereto in the case of AES (the “AES Representative”) and to any New Member that executed a joinder to this Agreement as set forth in such joinder. The representatives of the Credit Support Providers shall promptly notify the Credit Support Providers of the Credit Support Request. Following their review, each Credit Support Provider shall promptly notify the Company of the decision made by such Credit Support Provider.

 

2.3

Credit Support Fees.

 

(a)        To the extent that Credit Support is provided by a Credit Support Provider or an Affiliate thereof, the Company shall pay to such Credit Support Provider a fee for the provision of such Credit Support (a “Credit Support Fee”). The applicable Credit Support Fee shall be paid as described on Schedule 2 attached hereto. Without regard to Section  6.7 hereto, Schedule 2 may be updated from time to time by mutual agreement of the Parties.

 

(b)        Credit Support Fees shall accrue during the period from and including the date of issuance of the applicable Credit Support to but excluding the date on which all outstanding Credit Support Obligations with respect thereto have been satisfied in full. All Credit Support Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). Credit Support Fees shall be payable in arrears ten (10) Business Days after the last Business Day of March, June, September and December of each year, and on the date of any reimbursement payment made pursuant to Section  2.4 below. On the date a Credit Support Fee is paid, the Company shall deliver a statement detailing the calculation thereof to all Credit Support Providers in accordance with Section 6.4.

 

 

(c)        To the extent that Credit Support is provided via a letter of credit, surety bond, guaranty, or other instrument issued by a financial institution or Third Party on behalf or at the request of a Credit Support Provider, the Company shall, in addition to paying the Credit Support Fee, reimburse such Credit Support Provider upon demand for the actual costs and expenses incurred by such Credit Support Provider in having such instrument issued and maintained.

 

2.4          Reimbursement Obligations. The Company irrevocably and unconditionally agrees to reimburse each Credit Support Provider for all amounts paid to a Credit Support Counterparty (i) out of any cash collateral posted by a Credit Support Provider, (ii) pursuant to any draw under any letter of credit, surety bond, or other instrument provided or arranged by a Credit Support Provider or an affiliate thereof or (iii) by a Credit Support Provider under any Financial Guarantee or Performance Guarantee provided by such Credit Support Provider, in each case in satisfaction of the applicable Credit Support Obligation (collectively, any amount so paid being referred to as a “Credit Support Payment”), together with interest thereon from the date of payment of any Credit Support Payment until such time as the Company reimburses such Credit Support Provider therefor, as applicable, at a per annum rate equal to the Interest Rate for the first thirty (30) days after payment of the Credit Support Payment and the Default Rate thereafter. If a Credit Support Provider shall have made a Credit Support Payment, such Party shall furnish to the Company a written notice (a “Reimbursement Demand”) indicating the amount due and payable hereunder (which shall include interest accrued on such Credit Support Payment together with any Credit Support Fees and other amounts then due and owing pursuant to Section  2.3 above), together with supporting documentation detailing the Credit Support Payment and the related Credit Support Obligation. Any reimbursement by the Company pursuant to this Agreement shall be made by wire transfer of immediately available funds no later than thirty (30) days following receipt of a Reimbursement Demand, in accordance with such payment instructions as may be received from the Credit Support Provider, as applicable, from time to time.

 

2.5         Credit Support Delinquency. In the event that a Credit Support Provider (as the case may be, the “Delinquent Party”) shall have failed to make any payment as required in satisfaction of a parent or other affiliate guaranty issued by such Delinquent Party or an affiliate thereof, the other Party (the “Curing Party”) shall have the right, but not the obligation, to make all or part of such Credit Support Payment to the beneficiary of such guaranty (the “Cure Payment”). Immediately and automatically upon the making of such Cure Payment by the Curing Party, the Delinquent Party shall be indebted to the Curing Party for the amount of the Cure Payment, payable to the Curing Party on demand, together with interest from the day such Cure Payment is made by the Curing Party until the Cure Payment is paid in full, at an annual interest rate equal to the Default Rate. Each of the Credit Support Providers acknowledges and agrees that, as a non-exclusive remedy and without altering in any way the absolute and unconditional obligation of the Delinquent Party to fully repay a Cure Payment on demand to the Curing Party, distributions otherwise payable to the Delinquent Party and its Affiliates under or pursuant to the Company LLC Agreement shall be disbursed by the Company to the Curing Party and any such amounts received by the Curing Party shall be deemed to have been applied to payment of the outstanding balance of the Cure Payment until paid in full.

 

 

2.6          Payment Timing. In the event that a payment required to be made hereunder shall become due on a day other than a Business Day, payment shall instead be considered due on the next succeeding Business Day and the extension of time shall be reflected in computing any interest and fees owing.

 

2.7

Obligations Absolute.

 

(a)        The obligations of the Company to satisfy any Reimbursement Demand constitute direct, absolute and unconditional obligations of the Company, and shall be enforceable against the Company by each Credit Support Provider, as applicable, and are not, and shall not be, subject to any defense or right of set-off, counterclaim, deduction, diminution, abatement, recoupment, suspension, deferment or reduction or any other legal or equitable defense of a surety which the Company has or may hereafter have against any Credit Support Provider or other Person for any reason whatsoever. The Company’s obligation to satisfy any Reimbursement Demand shall be absolute and unconditional irrespective of: (i) any change in the time, manner or place of payment of, or in any other term of, such Credit Support Obligation or Reimbursement Demand, or any amendment or waiver thereof; (ii) any merger or consolidation of any Party into any other entity, or any sale, lease or transfer of all or any of the assets of any Party to any other Person; or (iii) any impossibility or impracticability of performance, force majeure, any act of any government or other circumstance which might constitute a defense available to any Party, or a discharge of any Party or, to the fullest extent permitted by Applicable Law, any other circumstance, event or happening whatsoever, whether foreseen or unforeseen and whether similar or dissimilar to anything referred to in this paragraph. The obligations of each Credit Support Provider shall be subject to any defenses available to the Company with respect to any related Credit Support Obligation.

 

(b)        No Party shall have any right to terminate this Agreement or to be released, relieved or discharged (other than by full and strict compliance with the terms hereof) from any obligation or liability hereunder for any reason whatsoever, as long as any Credit Support Obligation or Reimbursement Demand shall be outstanding.

 

(c)        The obligations of each Credit Support Provider to satisfy such its obligations under the Credit Support that it has issued are several (and not joint) obligations of each such Party and shall not be affected by the failure of any other Party to perform its obligations to the Company hereunder.

 

(d)       NEITHER PARTY NOR ANY OF ITS AFFILIATES WILL BE LIABLE, WHETHER IN CONTRACT, INDEMNIFICATION, WARRANTY, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY PUNITIVE, SPECIAL, NON-PROXIMATE, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER WHICH IN ANY WAY ARISE OUT OF, RELATE TO, OR ARE A CONSEQUENCE OF, ITS PERFORMANCE OR NONPERFORMANCE HEREUNDER.

 

(e)        No Party shall have a right to security in the form of collateral from a Credit Support Provider.

 

 

 

2.8            Change of Percentage Interest. In the event a third party becomes a member of the Company (a “New Member”), such New Member may, but shall not be obligated to, become a Credit Support Provider by executing a joinder to this Agreement and agreeing to be bound by the terms hereof with respect to its Percentage Interest. In the event that the Percentage Interest of the Credit Support Providers change (including, for sake of clarity, in the case where a New Member signs a joinder to this Agreement and becomes a Credit Support Provider hereunder), the obligations of the Credit Support Providers hereunder shall also be proportionately modified to reflect the revised Percentage Interests of the Credit Support Providers. If such New Member elects not to become a Credit Support Provider, the obligations of the Credit Support Providers under this Agreement, including, for the sake of clarity, the indemnification obligations in Section 2.1(b), shall continue in full force and effect to the extent of each Credit Support Provider’s Allocable Share.

 

ARTICLE 3 

ADDITIONAL COVENANTS

 

3.1            Line of Credit. During the Term, each Credit Support Provider severally agrees that it shall, when and as requested by the Company, use its commercially reasonable efforts to assist the Company in its efforts to obtain a line of credit for up to one hundred sixty (160) million dollars, or such larger amount as authorized by the Company Board of Directors from time to time, from commercial bank(s) (the “Line of Credit”). The Line of Credit shall be governed by separate documentation negotiated by the applicable commercial bank(s) and the Company, with the assistance of the Credit Support Providers. Further, each Credit Support Provider agrees to use its commercially reasonable efforts to provide, or to cause one of its Affiliates to provide, up to ten (10) million dollars of Credit Support for the Line of Credit. For the avoidance of doubt, the provision of the Credit Support discussed in the preceding sentence will incur the Credit Support Fee.

 

3.2            Advanced Amounts. During the Term, the Company shall have the right to request amounts in the form of a loan (each such advance, an “Advanced Amount”) from the Credit Support Providers to engage in specified activities; provided, however, an Advanced Amount shall only be sought by the Company if (i) the Company is proposing to use the Advanced Amount to finance a specifically identified project with significant debt funding requirements and (ii) the Company is unable to obtain funding for such project from other sources on commercially acceptable terms. The Credit Support Providers shall consider the request for any Advanced Amount in good faith, although the Credit Support Providers shall not have the obligation to fund any Advanced Amounts. The terms of any such Advanced Amounts shall be determined on a case by case basis between the Company and the applicable Credit Support Provider(s).

 

ARTICLE 4 

TERM

 

The term of this Agreement (the “Term”) shall commence on the Effective Date and shall continue until the fourth (4^th) anniversary thereof (the “Initial Expiration Date”). The Term shall automatically and indefinitely continue after the Initial Expiration Date, except that either Credit Support Provider shall be permitted to terminate this Agreement effective at any time on or after the Initial Expiration Date by providing not less than six (6) months’ notice to the other Parties; provided, however, that any Credit Support provided by a Credit Support Provider shall remain in effect according to its terms after any such termination until such Credit Support has been replaced by the Company; provided further that the Company will use commercially reasonable efforts to replace all Credit Support obligations of a Credit Support Provider as soon as practical after such Credit Support Provider provides notice of its desire to terminate this Agreement.

 

 

ARTICLE 5 

REPRESENTATIONS AND WARRANTIES

 

Each of the Parties represents and warrants to the other Parties as of date hereof as follows:

 

5.1            Organization and Good Standing. It is duly organized, validly existing and in good standing under the laws of its state of formation as set forth in the preamble of this Agreement.

 

5.2            Authorization. It has all requisite power and authority to execute and deliver this Agreement and to perform its obligations set forth herein without the consent or approval of any Third Party except any consent or approval that has been obtained. It has duly authorized, executed and delivered this Agreement, and this Agreement constitutes its legal, valid and binding obligation and is enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium, insolvency and similar laws affecting the rights of creditors generally, and by general principles of equity, regardless of whether considered in a proceeding at law or in equity.

 

5.3            Legal Proceedings. There is no action, suit or proceeding pending or, to the knowledge of such Party, threatened against it, at law or in equity or before any Governmental Authority or arbitrator which would reasonably be expected to impair its ability to perform its obligations under this Agreement.

 

5.4            No Conflict. Except as would not reasonably be expected to impair its ability to perform its obligations under this Agreement, the execution, delivery and performance by it of its obligations under this Agreement will not (a) contravene any law or any order, writ, decree or injunction of any Governmental Authority, (b) conflict with, or result in a breach of any term, covenant, condition or provision of, or constitute a default under, or result in the creation or imposition of any Lien upon any of its assets pursuant to, the terms of any agreement or instruments to which it is a party or by which it or any of its properties is bound, or (c) violate any provision of its organizational documents or any contract or agreement.

 

5.5            Approvals and Filings. No material governmental approval or filing with, or prior notice to, any Governmental Authority or any Third Party is required to be obtained or made by it for the execution, delivery and performance by it of this Agreement, or the consummation of the transactions contemplated hereby.

 

ARTICLE 6 

MISCELLANEOUS

 

6.1            Entire Agreement; Effect on Prior Agreement. This Agreement constitutes the full and entire agreement and understanding of the Parties in respect of the subject matter contained herein and supersedes all prior agreements and understandings between the Parties hereto with respect to such subject matter. Upon the execution and delivery of this Agreement by all of the Parties, the Prior Agreement shall be deemed amended and restated and superseded and replaced in its entirety by this Agreement and shall be of no further force or effect.

 

 

6.2            Further Actions; Cooperation. Each of the Parties agrees to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable in connection with the transactions contemplated by this Agreement.

 

6.3            Costs and Expenses; Attorney’s Fees. Except as otherwise expressly provided herein, all legal and accounting costs, charges and expenses (including Taxes) incurred in connection with this Agreement and the transactions contemplated hereby shall be borne by the Party incurring such expenses. In the event that any suit or action is instituted to enforce any provision of this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, all fees, costs and expenses of appeals.

 

6.4            Notices. All notices, requests, consents and other communications under this Agreement must be in writing and shall be deemed to have been duly given and effective (a) immediately (or, if not delivered or sent on a Business Day, the next Business Day) if delivered or sent and received by electronic mail and if hard copy is delivered by overnight delivery service the next Business Day, (b) on the date of delivery if by hand delivery (or, if not delivered on a Business Day, the next Business Day) or (c) on the first Business Day following the date of dispatch (or, if not sent on a Business Day, the next Business Day after the date of dispatch) if by a nationally recognized overnight delivery service (all fees prepaid). All notices and other communications required or permitted under this Agreement shall be delivered to the following addresses, or such other addresses as may hereafter be designated in writing by such Party to the other Parties:

 

(a)            If to AES:

 

AES Grid Stability, LLC 

4300 Wilson Boulevard

Suite 1100 

Arlington, VA 22203

Attention: Stephen Coughlin 

Email: stephen.coughlin@aes.com

 

 

with copies (which shall not constitute notice) to:

 

AES Grid Stability, LLC 

4300 Wilson Boulevard

Suite 1100 

Arlington, VA 22203

Attention : Paul Freedman 

Email: paul.freedman@aes.com

 

(b)            If to Siemens:

 

Siemens Industry, Inc. 

800 Northpoint Parkway, #450

Alpharetta, GA 30005 

Attn: Associate General Counsel

Email: langley.craig@siemens.com

 

(c)            If to the Company:

 

Fluence Energy, LLC

4300 Wilson Boulevard

Suite 1100 

Arlington, VA 22203

Attn: Manuel Perez Dubuc 

Email: manuel.perez@fluenceenergy.com 

 

Latham & Watkins LLP.

885 Third Avenue 

New York, NY 10022

Attention: David L. Concannon 

Email: david.concannon@lw.com

 

with copies (which shall not constitute notice) to:

 

Fluence Energy, LLC

4300 Wilson Boulevard

Suite 1100 

Arlington, VA 22203

Attn: General Counsel 

Email: frank.fuselier@fluenceenergy.com;

 

and

 

Each of AES and Siemens.

 

 

6.5            Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereby waive any provision of Applicable Law which renders any provision hereof prohibited or unenforceable in any respect.

 

6.6            Binding Nature; Assignment; Consent to Assignment; No Third Party Beneficiaries. This Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the Parties and their respective successors and legal representatives and permitted assigns. No Party shall assign its rights and obligations under this Agreement, without the prior written consent of the other Parties, and any such assignment contrary to the terms hereof shall be null and void ab initio and of no force and effect. This Agreement is not intended to confer any rights or remedies hereunder upon any other Person except the Parties, it being for the exclusive benefit of the Parties and their respective successors and permitted assigns. Persons other than the Parties may not rely upon the representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.

 

6.7            Amendments. Except as discussed in Section 2.3(a) hereto, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by all of the Parties.

 

6.8            Governing Law. This Agreement, the legal relations between the Parties hereto and the adjudication and the enforcement thereof, shall be governed by and interpreted and construed in accordance with the substantive laws of the State of Delaware, without regard to applicable choice of law provisions thereof.

 

6.9            Specific Performance. The Parties agree that irreparable harm would occur and the Parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which they are entitled at law or in equity, notwithstanding Section  6.12. The Parties hereby waive, in any action for specific performance, the defense of adequacy of a remedy at law and the posting of any bond or other undertaking or security in connection therewith. Each Party further agrees that (a) by seeking any remedy provided in this Section  6.9, a Party shall not in any respect waive its right to seek any other form of relief that may be available to a Party under this Agreement and (b) nothing contained in this Section  6.9 shall require any Party to institute any action for (or limit any Party’s right to institute any action for) specific performance under this Section  6.9 prior to exercising any other right under this Agreement.

 

 

6.10          Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one (1) and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

6.11          Public Announcements.

 

(a)            No public announcement or press release in connection with the execution or subject matter of this Agreement by any Person shall be made or issued by or on behalf of any Party without the prior written approval of the other Parties, which approval shall not be unreasonably withheld.

 

(b)           If a Party is required to make or issue any announcement required by law or any stock exchange or by any Governmental Authority, such Party shall give the other Parties reasonable opportunity to comment on such announcement or release before it is made or issued (provided that opportunity to comment shall not have the effect of preventing the Party making the announcement or release from complying with its disclosure obligations).

 

6.12          Dispute Resolution.

 

(a)            Except as otherwise provided by this Agreement, any dispute, controversy or claim arising out of or in connection with, or relating to, this Agreement or any breach or alleged breach hereof (which breach or alleged breach by a Party remains uncured within ten (10) Business Days after receipt of written notice thereof from another Party) or the validity or termination hereof (a “Dispute”) shall first be settled as far as possible by good faith negotiations between the parties to the Dispute, in the form of meetings between senior-management level representatives of such Parties, upon the written request by any such Party to the other parties to the Dispute, which writing shall set forth in reasonable detail the nature and extent of the Dispute.

 

(b)            If the parties to the Dispute are unable for any reason to resolve a Dispute within thirty (30) days after receipt by any Party of written notice of a Dispute, then any Party may submit the Dispute to arbitration to be finally and exclusively resolved under the Commercial Arbitration Rules of the American Arbitration Associate (“AAA”) then in effect (the “Rules”), except as modified herein. There shall be three (3) arbitrators. If there are two (2) parties to the Dispute, each of the parties to the Dispute shall nominate one (1) independent arbitrator in accordance with the Rules. If there are more than two (2) parties to the Dispute, the independent arbitrators shall be nominated in accordance with the Rules; provided, however, that any Party and its Affiliates shall be entitled to nominate only one (1) such independent arbitrator. The arbitrators so nominated, once confirmed by the AAA, shall nominate an additional arbitrator to serve as chairman, such nomination to be made within fifteen (15) days of the confirmation by the AAA of the second arbitrator. If the initial arbitrators shall fail to nominate an additional arbitrator within such fifteen (15) day period, such additional arbitrator shall be appointed by the AAA. The arbitrators shall be required to submit a written statement of their findings and conclusions. Except as otherwise agreed by the parties to such Dispute, exclusive venue of arbitration shall be New York, New York, and the language of the arbitration shall be English and each of the Parties hereby submits to the non-exclusive jurisdiction of the state and federal courts located in New York, New York for preliminary relief in aid of arbitration and for the enforcement of any arbitral award. By agreeing to arbitration, the Parties do not intend to deprive any national court of its jurisdiction to issue any pre-arbitral injunction, pre-arbitral attachment or other order in aid of arbitration proceedings.

 

 

(c)            None of the Parties or the arbitrators shall select any arbitrator for the arbitral tribunal who has any interest in the Dispute or who has, or within the immediately preceding five (5) years has had, any economic or other relationship with any party to the Dispute.

 

(d)            The arbitrators shall not have the right to award consequential, incidental, indirect, special, treble, multiple or punitive damages. The arbitral tribunal shall not be empowered to decide any dispute ex aequo et bono or amiable compositeur, and the arbitral tribunal shall decide the Dispute under the substantive laws of the State of Delaware, without regard to applicable choice of law provisions thereof. The arbitration award shall be decided by majority opinion and issued in writing in the English language and shall state the reasons upon which it is based. It may be made public only with the consent of each participating Party or as may be required by law or regulatory authority or as necessary for enforcement of such award. The arbitrators shall allocate the fees and costs of the arbitration. The losing Party(ies) shall pay the prevailing Party(ies)’ attorney’s fees and costs and the costs associated with the arbitration, including the expert fees and costs and the arbitrators’ fees and costs borne by the prevailing Party(ies), all as determined by the arbitrators. Each Party shall bear its own fees and costs until the arbitrators determine which, if any, Party is the prevailing Party(ies) and the amount that is due to such prevailing Party(ies).

 

(e)            The award rendered by the arbitrators shall be final and binding on the participating Parties and shall be the sole and exclusive remedy between and among the participating Parties regarding any claims, counterclaims, issues or accounting presented to the arbitral tribunal. The award shall be issued no later than one hundred twenty (120) days from the last hearing held by the arbitrators or as soon thereafter as practicable. The award shall be paid within thirty (30) days after the date it is issued and shall be paid in U.S. Dollars in immediately available funds, free and clear of any Liens, Taxes or other deductions. A judgment confirming or enforcing such award may be rendered by any court of competent jurisdiction.

 

(f)             The arbitration shall be confidential. No Party may disclose the fact of the arbitration, any award relating thereto or any settlement relating to any Dispute without the prior consent of the other Party(ies); provided, that such matters may be disclosed without the prior consent of the other Party(ies) to lenders, auditors, Tax or other Governmental Authority or as may be required by law or regulatory authorities or as necessary to enforce any award.

 

(g)            Notwithstanding the existence of any Dispute, the Parties shall continue to perform their respective obligations under this Agreement unless the Parties otherwise mutually agree in writing. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement is intended to, nor shall it, prevent the Parties from seeking temporary injunctive relief at any time as may be available under Applicable Law or in equity to preserve its rights pending the outcome of any arbitration. Without prejudice to such provisional remedies as may be available under the jurisdiction of a national court, the arbitral tribunal shall have full authority to grant provisional remedies or order the Parties to request that a court modify or vacate any temporary or preliminary relief issued by a court, and to award damages for the failure of any Party to respect the arbitral tribunal’s orders to that effect. The Parties agree that any issue regarding the arbitrability of any claims or disputes arising under, relating to or in connection with this Agreement is an issue solely for the arbitrators, not a court, to decide.

 

 

(h)            THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY OR OTHERWISE ON ANY CLAIM, CAUSE OF ACTION, SUIT OR PROCEEDING PERMITTED UNDER THIS SECTION  6.12. THE PROVISIONS OF THIS AGREEMENT RELATING TO WAIVER OF TRIAL BY JURY SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES THAT IT IS RELYING ON THE WAIVER CONTAINED HEREIN AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTION DOCUMENTS, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION  6.12.

 

6.13          Execution and Delivery. A .pdf, or other reproduction of this Agreement may be executed by one or more parties hereto and delivered by such Party by email or any similar electronic transmission device pursuant to which the signature of or on behalf of such Party can be seen. Such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any Party hereto, all parties hereto agree to execute and deliver an original of this Agreement as well as any .pdf or other reproduction hereof.

 

6.14          Delays or Omissions. Except as expressly provided herein, no delay or omission to exercise any right, power or remedy accruing to any Party upon any breach or default of any other Party shall impair any such right, power or remedy of such non-defaulting Party, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Party of any breach or default under this Agreement, or any waiver on the part of any Party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.

 

[SIGNATURE PAGE FOLLOWS]

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

	Fluence Energy, LLC
	By :	/s/ Manuel Perez Dubuc
	Name:	Manuel Perez Dubuc
	Title:	Chief Executive Officer
	By:	/s/ Dennis Fehr
	Name:	Dennis Fehr
	Title:	Chief Financial Officer

     

 

	The AES Corporation
	By:
	Name:
	Title :
	Siemens Industry, Inc.
	By:
	Name:
	Title:
	By:
	Name:
	Title:

 

[Signature Page to Credit Support and Reimbursement Agreement]

 

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

	Fluence Energy, LLC
	By:
	Name:
	Title:
	By:
	Name:
	Title:
	The AES Corporation
	By:	/s/ Chris Shelton
	Name:	Chris Shelton
	Title:	Vice President and Chief Product Officer
	Siemens Industry, Inc.
	By:	/s/ Ruth Gratzke
	Name:	Ruth Gratzke
	Title:	Chief Executive Officer
	By:	/s/ Marsha Smith
	Name:	Marsha Smith
	Title:	Chief Financial Officer

  

[Signature Page to Credit Support and Reimbursement Agreement]

 

 

Schedule 1

 

Party Representatives

 

Siemens Representative

 

Alexander Pilz

Siemens AG

Energy Management Division

Medium Voltage & Systems

Mozartstraße 31C 

91052 Erlangen, Germany 

Email:	pilz.alexander@siemens.com
Mobil:	+49 152 56603759

 

AES Representative

 

John Haberl 

The AES Corporation 

4300 Wilson Boulevard

Suite 1100 

Arlington, VA 22203 

Email :	john.haberl@aes.com
Tel:	(703) 682-6446

 

 

Schedule 2

 

Credit Support Fees

 

 

 

Exhibit 10.16

 

Docket No.: 2017P00247WOUS, 2017P00351WOUS, 2017P02208WOUS

Page 1 of 2

 

ASSIGNMENT OF RIGHTS
Company to Company

 

WHEREAS, Siemens Aktiengesellschaft (Hereafter “Assignor”) and Fluence Energy, LLC (Hereafter “Assignee”) (individually referred to as “Party” and collectively as “Parties”)

 

Hereby, (I)(A) acknowledge they have entered into certain agreements (hereinafter referred to as “the Agreements”) which set forth certain rights, limitations and obligations regarding inventions developed by or among Parties, and/or Intellectual Property owned by one or both of the Parties and the Parties agree that the terms of the Agreements apply to any and all inventions; or

 

(B)(i) Agree to the extent such Agreement(s) or similar legal document(s) failed or fails, in whole or part, to have assigned, sold or transferred the entire right (including priority rights), title and interest, in and for the United States and all foreign countries, in and to all inventions which are disclosed in an invention disclosure and/or in the below-identified application or application already filed for Letters Patent, or (ii) if no such agreement(s) exist assigning, selling or transferring any such right (including priority rights), title or interest; then for good and valuable consideration, Assignor now and hereby, effective Nunc Pro Tunc on the filing date of the below identified patent application(s), pending patent application(s) or granted Letter Patent(s), assigns, sell and transfers to Assignee, its successors, assigns and legal representatives, the entire right, (including all priority rights), title and interest in and for the United States and all foreign countries, in and to any and all inventions and improvements which are disclosed in the following identified; patent application(s), pending patent application(s) or granted Letter Patent(s) which are disclosed in the application for Letters Patent or granted patent, entitled:

 

Patent Application Title: Arrangement, in particular converter systems coupled via their DC intermediate circuits, for compensating voltage drops in the associated network feeds, and system comprising such an assembly

Filing Date: 27 Jun 2018

Filing Number: 16/628, 121

Internal Case Number(s): 2017P00247WOUS

 

Patent Application Title: ARRANGEMENT FOR EQUALIZING VOLTAGE DROPS IN A POWER SUPPLY MAINS AND METHOD FOR EQUALIZING VOLTAGE DROPS IN A POWER SUPPLY MAINS

Filing Date: 27 Jun 2018

Filing Number: 16/628,061

Internal Case Number(s): 2017P00351WOUS

 

Patent Application Title: UNINTERRUPTIBLE POWER SUPPLY

Filing Date: 21 Jun 2018

Filing Number: 16/628,759

Internal Case Number(s): 2017P02208WOUS

 

and in and to said application or granted patents and all applications claiming priority to said application or granted patent, including, without limitation, and all divisional, continuing, substitute, renewal, reissue, and all other applications for Letters Patent which have been or shall be filed in the United States and all foreign countries on any of the inventions or improvements; and in and to all original and reissued patents which have been or shall be filed in the United States and all foreign countries on the inventions or improvements;

 

 

Docket No.: 2017P00247WOUS, 2017P00351WOUS, 2017P02208WOUS

Page 2 of 2

 

(II) Agree that the Assignee may apply for and receive Letters Patent for said improvements in its own name; and that, when requested, without charge to but at the expense of said Assignee, its successors, assigns and legal representatives, to carry out in good faith the intent and purpose of this assignment, the undersigned will execute all divisional, continuing, substitute, renewal, reissue, and all other patent applications on any and all the inventions or improvements; execute all rightful oaths, assignments, powers of attorney and other papers; communicate to said Assignee, its successors, assigns, and legal representatives, all facts known to the undersigned relating to the inventions or improvements and the history thereof; and generally do everything possible which said Assignee, its successors, assigns or legal representatives shall consider desirable for aiding in securing and maintaining proper patent protection for the inventions or improvements and for vesting title to the inventions or improvements and all applications for patents and all patents on the inventions or improvements, in said Assignee, its successors, assigns and legal representatives; and

 

(III) Covenant with said Assignee, its successors, assigns and legal representatives that no assignment, grant, mortgage, license or other agreement affecting the rights and property herein conveyed has been made to others by the undersigned, and that full right to convey the same as herein expressed is possessed by the undersigned.

 

The Parties acknowledge and agree that the inventor(s) may have previously assigned its rights (including all and any priority rights) in one or more above-referenced applications for Letters Patents directly to a Party as directed by the other Party, consistent with the Agreements. Any such directed assignment shall remain in full force and effect and shall take precedence over this Assignment to the extent any conflict exists.

 

Siemens Aktiengesellschaft
Signature(s)	/s/ Michael Gollwitzer		/s/ Daniel Maier
Name(s)	Michael Gollwitzer		Daniel Maier
Title	Both authorized officers
Date	March 1, 2021
Fluence Energy, LLC
Signature(s)	/s/ Brett L. Galura		/s/ Francis A. Fuselier
Name(s)	Brett L. Galura		Francis A. Fuselier
Title	CTO		Secretary
Date	March 19, 2021		April 6, 2021

 

 

 

Absender	Ort, Datum
Sender	Place, date
Expéditeur	Lieu, date

 

An das
Deutsche Patent- und Markenamt
80297 München

 

Betr.: Antrag auf Umschreibung von Patenten / Patentanmeldungen

Ref.: Request to record the details of transfer of ownership of patents / patent applications

Concerne: Requête en enregistrement de transfert de brevets / demandes de brevets

 

Es wird beantragt, folgende(s) Patent(e) / Patentanmeldung(en)

It is hereby requested to record the transfer of ownership of the following patent(s) / patent application(s)

Par la présente, les soussignés requiérent I’enregistrement du transfert du (des) brevet(s) suivant(s) / de la (des) demande(s) de brevet suivante(s)

 

(Aktenzeichen) (file number/s) (numéro du dossier)
10 2017 211 351.0	10 2017 211 356.1	10 2017 211 355.3

 

im Register des Deutschen Patent- und Markenamts umzuschreiben von

in the register of the German Patent and Trade Mark Office, from the

au registre de I’Office allemand des brevets et des marques de

 

(eingetragener Anmelder / lnhaber) (registered applicant / owner) (déposant / titulaire enregistré)

Siemens Aktiengesellschaft

 

auf

to the

à I’acquéreur suivant

 

(Erwerber) (assignee) (nom de I’acquéreur)

Fluence Energy, LLC, 4300 Wilson Blvd, Suite 900, Arlington VA 22203, UNITED STATES OF AMERICA

 

Unterschrift des eingetragenen Anmelders / lnhabers oder Vertreters		Unterschrift des Erwerbers oder Vertreters
Signature of the registered applicant / owner or representative		Signature of the assignee or representative
Signature du déposant / titulaire enregistré ou du mandataire		Signature de I’acquéreur ou du mandataire
Siemens Aktiengesellschaft		Fluence Energy, LLC
/s/ Milzarek	/s/ Rubik-Beierlorzer	/S/ BRETT GALURA	/s/ Francis A. Fuselier
Milzarek	Rubik-Beierlorzer	BRETT GALURA	Francis A. Fuselier
Handlungsbevollmächtigte(r)		CTO	General Counsel

 

Bei den Unterschriften sind die Namen in Druckbuchstaben zu wiederholen.

Bei Firmen Bezeichnung laut Handelsregister mit zusätzlicher Funktionsbezeichnung des / der Unterzeichner/s.

Please indicate the name also in block capitals.

In case of companies, name of the company as registered in the commercial register and indication of the position/s of the undersigned.

Les noms des signataires doivent également étre indiqués en caractéres d’imprimerie.

S’il s’agit d’un établissement, il convient d’apporter le nom commercial selon le registre du commerce avec mention additionnelle de la position du (des) soussigné(s).

 

Hinweis:

Bei mehreren (kűnftigen) Anmeldern / Inhabern muss zusätzlich zum Umschreibungsantrag ein gemeinsamer Zustellungs-bevollmächtigter von allen künftigen Anmeldern / Inhabern benannt werden.

 

Nur auszufűllen von Patent- und Rechtsanwälten - sofern zutreffend - :

¨

Wir vertreten die /den

¨

bisherige/n Patentanmelder/in / Patentinhaber/in

¨

kűnftige/n Patentanmelder/in / Patentinhaber/in

 

Name und Unterschrift des Patent- oder Rechtsanwalts

 

IDNR: 4168 / 31.07.2009

 

 

 

2017P02208DE, 2017P00351DE, 2017P00247DE

 

 

 

2017P02208DE, 2017P00351DE, 2017P00247DE

 

Annex to the Act of Assignment

 

 

2017P00247WE, 2017P00351WE, 2017P02208WE
Übertragungserklärung	Declaration of Assignment	Déclaration de cession
für Patente, Gebrauchsmuster, Marken,	for Patents, Utility Model Rights,	pour les brevets, les droits lies aux
deren Anmeldungen sowie IR-Marken	Trademarks	modèles d'utilité, les marques, leurs
	their applications and International	demandes et les enregistrements
	Trademarks	internationaux
Die unterzeichnete(n) Inhaber(in)	I/we the undersigned owner	Je/nous, soussigné(s) propriétaire(s)
der/des folgenden Schutzrechte(s)	of the following protective	des droits ou demandes de propriété
	right(s)/application(s)	intellectuelle suivant
	18739761.7, 18739763.3, 18739466.3

überträgt diese(s) mit allen Rechten und Pflichten auf	herewith assign those with all rights and duties to	cèdons ceux-ci avec pleins droits et obligations à
	Fluence Energy, LLC
	4300 Wilson Blvd, Suite 900
	Arlington VA 22203
	United States of America

und erklärt / erklären sich gleichzeitig mit	and agree that the assignment is recorded	et approuve que cet enregistrement
der Umschreibung	in the	soit inscrit à un office des
auf die Erwerber(in) einverstanden.	Patent Office.	brevets/marques.
Ort/Datum:	Place/Date:	Lieu/Date:
	Erlangen, 27.11.2020
	Siemens Aktiengesellschaft

 

	/s/ Michael Gollwitzer		/s/ Daniel Maier
	Michael Gollwitzer		Daniel Maier
	Prokurist		Prokurist

 

Unterschrift der Abtretenden	Signature of the assignor	Signature du cédant
Keine Beglaubigung erforderlich	Attestation is not required	Aucune certification nécessaire

Annahme-Erklärung	Declaration of Acceptance	Déclaration d'acceptation
Mit vorstehender Übertragung erklären	I/We hereby agree to the afore-mentioned	Je/nous attestons favorablement de la
wir uns einverstanden und beantragen	assignment and apply for recording of the	cession sus-mentionnée et
die Umschreibung in den betreffenden	assignment in the registers of the Patent	demandons l'inscription de la cession
Registern.	Office.	au registre de l'office de
		brevet/marque.
Die Umschreibungsgebühr in Höhe	The assignment fee amounting	La taxe de cession d'un montant de
von € 315,00 wird entrichtet	to € 315,00 has been/will be transfered.	€ 315,00 a été/sera acquittée
Ort/Datum:	Place/Date:	Lieu/Date:
	Arlington, Virginia USA, 6 April 2021
	Fluence Energy, LLC

 

/s/ Francis A. Fuselier

 

Unterschrift der Erwerber(in)	Signature of assignee	Signature de l'acquėreur
Keine Beglaubigung erforderlich	Attestation is not required	Aucune certification nécessaire
IDNR: 2650 / 06.08.2009

 

 

 

201700351WOIN

 

DEED OF ASSIGNMENT

 

WHEREAS, WE,

 

Siemens Aktiengesellschaft, Werner-von-Siemens-Straße 1, 80333 München,

 

Germany

 

(hereinafter called the Assignor) is the proprietor of the invention covered in the Indian Patent Application No./ Indian Patent No. 201917054642

 

AND WHEREAS,

 

Fluence Energy, LLC, 4300 Wilson Blvd, Suite 900, Arlington VA 22203,

 

United States of America

 

(hereinafter called the Assignee) are desirous of acquiring the entire right, title and interest of the Assignor in and to the aforesaid Patent.

 

NOW, THEREFORE, TO ALL WHOM IT MAY CONCERN, be it known that for and in consideration of a sum of Euro 10.00 the (receipt of which is hereby acknowledged by the Assignor) Assignor as beneficial owner, hereby agrees to sell, assign and transfer unto the said Assignee, its successors and assigns, entire right, title and interest in and to the aforesaid patents and by these presents does sell, assign and transfer unto the said Assignee, its successors, and assigns, its entire right, title and interest in and to the aforesaid patents in India and all the singular, the liberties, powers, privileges and advantages, whatsoever appertaining or belonging thereto the same to be held and enjoyed by the Assignee as fully and entirely as the same would have been held by the Assignor had this Assignment not been made.

 

The Assignor consents to the Assignee recording the Assignment in their favour and the said Assignor agrees to do all that may be necessary or required to put the foregoing into effect.

 

 

2017P00351WOIN

 

IN WITNESS WHEREOF, the said Assignor has executed this document on the 1^st day of March 2021

 

WITNESSES:	Siemens Aktiengesellschaft
	/s/ Michael Gollwitzer	/s/ Daniel Maier
	Michael Gollwitzer	Daniel Maier
	Both authorized officers

 

We,

 

Fluence Energy, LLC, 4300 Wilson Blvd, Suite 900, Arlington VA 22203, United States of America confirm our acceptance of this Assignment.

 

Dated this 6^th day of April of 2021

 

WITNESS:	Fluence Energy, LLC
	/s/ Brett Galura	/s/ Francis A. Fuselier
	Brett Galura	Francis A. Fuselier
	CTO	Secretary

 

 

 

Exhibit 10.28

 

FLUENCE ENERGY, LLC

 

PROMISSORY NOTE

 

August 11, 2021

$25,000,000

 

Effective as of the date set forth above (the “Effective Date”) and pursuant to all of the terms and conditions hereof, Fluence Energy, LLC, a Delaware limited liability company, for value received, promises to pay to the order of Siemens Industry, Inc., its successors and assigns (the “Holder”), the sum of $25,000,000, plus accrued interest thereon from the Effective Date of this Promissory Note (this “Note”) until paid in full at an annual interest rate, calculated on the basis of a 360 day year over the actual number of days elapsed, equal to the lesser of (i) the Interest Rate (as defined below) and (ii) the highest rate permitted by applicable law. Unless earlier prepaid as provided in Section 2 hereof, the outstanding principal hereof and all accrued but unpaid interest thereon (the “Debt”) shall be due and payable on the earlier of (i) on or after December 31st, 2021 (the “Repayment Date”) or (ii) upon the occurrence of an Event of Default.

 

1.              Definitions. As used in this Note, the following terms, unless the context otherwise requires, have the following meanings:

 

1.1           “Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banks are not required to be open or are authorized to close in New York, New York.

 

1.2           “Company” shall mean Fluence Energy, LLC, a Delaware limited liability company, and shall include any corporation, partnership, limited liability company or other entity that shall succeed to or assume the obligations of the Company under this Note.

 

1.3           “Interest Rate” shall mean 2.86 %.

 

1.4           “Mandatory Prepayment Event” shall mean any of: (i) the closing of any private placement of equity securities for the purpose of raising additional cash for the Company’s business needs, but specifically excluding any issuance of equity or equity derivatives by the Company or any of its subsidiaries in connection with compensatory programs for employees, directors and other service providers, (ii) the Company’s settlement of the first underwritten public offering of its securities under the Securities Act; (iii) the settlement of the first underwritten public offering of securities of Fluence Energy, Inc., a Delaware corporation, under the Securities Act, or (iv) the closing of any merger, consolidation, reorganization, recapitalization, capital share exchange, share sale, asset sale or other similar transaction or business combination (or series of related transactions or related business combinations), in each such case, between the Company (or any direct or indirect parent entity, subsidiary, affiliate or corporate successors thereof) and any entity that is a “special purpose acquisition company” (or any of its subsidiaries or affiliates) or “blank check” company (or any of its subsidiaries or affiliates), following which the surviving or resulting corporation or its successor has a class of equity securities listed on either the New York Stock Exchange or the Nasdaq Stock Market.

 

 

1.5           “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

2.              Mandatory Prepayment. Notwithstanding anything contained herein to the contrary, the Debt shall automatically and without notice be due and payable within five (5) Business Days following the date of the closing of a Mandatory Prepayment Event; provided that if the proceeds from any Mandatory Prepayment Event (the “Proceeds”) are insufficient to repay all Debt in full, such Proceeds shall be paid ratably against all outstanding Notes, and interest shall continue to accrue on the remaining outstanding principal and the remaining balance shall be paid in full upon the consummation of the next Mandatory Prepayment Event.

 

3.              Interest and Payments.

 

3.1            Accrued and unpaid interest shall, at the end of each calendar month, be added to the outstanding principal balance.

 

3.2            Except as otherwise specified herein, each payment or prepayment, if any, made under this Note shall be applied to pay late charges, accrued and unpaid interest, principal, escrows (if any), and any other fees, costs and expenses which Company is obligated to pay under this Note, in such order as Holder may elect from time to time in its sole discretion.

 

3.3            Payments of interest on the outstanding accumulated principal balance shall be due and payable in arrears on the first day of each month commencing on January 1, 2022.

 

3.4            All payments on this Note are payable on or before 2:00 p.m. on the due date thereof, at the office of Holder specified above and shall be credited on the date the funds become available lawful money of the United States. All sums payable to Holder which are due on a day on which Holder is not open for business shall be paid on the next succeeding business day and such extended time shall be included in the computation of interest.

 

3.5            Any prepayment in whole or in part shall include accrued and unpaid interest to the date of prepayment and all other sums due and payable hereunder.

 

3.6            From and after the earlier of the Repayment Date, a Mandatory Prepayment Event, or the occurrence of an Event of Default hereunder, irrespective of any declaration of maturity, all amounts remaining unpaid or thereafter accruing hereunder, shall, at Holder's option, bear interest at a default rate of two percent (2%) per annum above the interest rate then in effect as set forth herein (the "Default Rate"), or the highest permissible rate under applicable usury law, whichever is less. Such default rate of interest shall be payable upon demand.

 

4.              Representations and Warranties. The Company hereby represents and warrants to the Holder that:

 

4.1           Organization, Good Standing and Qualification. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as presently conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its business or properties.

 

 

4.2           Authorization. All action on the part of the Company, its officers, directors and equity holders necessary for the authorization of this Agreement and the Notes, the performance of all obligations of the Company hereunder and thereunder at the Closing and the sale, issuance and delivery of the Notes has been taken, except to the extent of any failure of authorization that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole. The Agreement and the Notes, when executed and delivered, will be valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except as limited by (a) applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights, (b) laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (c) applicable usury laws.

 

5.              Defaults and Remedies.

 

5.1           Events of Default. Upon the occurrence of an Event of Default (as defined below), the entire unpaid principal and accrued interest on the Note shall, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, be immediately due and payable. The following events shall be considered events of default (individually, an “Event of Default” and collectively, “Events of Default”):

 

(a)         If the Company fails to pay any of the principal, interest, or any other amounts payable under this Note when due and payable;

 

(b)        If the Company fails to pay any of the principal, interest, or any other amounts payable under any other Note when due and payable;

 

(c)         If the Company fails to pay any amount due to Holder under any other agreement pertaining to Company indebtedness or credit support provided by Holder;

 

(d)        any representation, warranty, certification, or other information furnished by or on behalf of the Company was false or misleading in any material respect when made;

 

(e)         If the Company files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or seeks the appointment of a custodian, receiver, trustee (or other similar official) of the Company or all or any substantial portion of the Company’s assets, or makes any assignment for the benefit of creditors or takes any action in furtherance of any of the foregoing, or fails to generally pay its debts as they become due; or

 

(f)          If an involuntary petition is filed, or any proceeding or case is commenced, against the Company (unless such proceeding or case is dismissed or discharged within 60 days of the filing or commencement thereof) under any bankruptcy, reorganization, arrangement, insolvency, adjustment of debt, liquidation or moratorium statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is applied or appointed for the Company or to take possession, custody or control of any property of the Company, or an order for relief is entered against the Company in any of the foregoing..

 

 

5.2           Remedies. Upon the occurrence of an Event of Default, each Holder shall have then, or at any time thereafter, all of the rights and remedies afforded creditors generally by the applicable federal laws or the laws of the State of Delaware at law, in equity or otherwise.

 

6.              Miscellaneous.

 

6.1          Waiver and Amendment. Any provision of this Note may be amended, waived or modified only upon the written consent of the Company and Holder.

 

6.2           Restrictions on Transfer; Assignment. The Holder may not transfer or assign all or any part of this Note without the approval of the Company, provided that the holder may assign this note to any affiliate within majority-ownership by Siemens AG. This Note may only be transferred in compliance with applicable state and federal laws. All rights and obligations of the Company and the Holder shall be binding upon and benefit the successors, assigns, heirs and administrators of the parties.

 

6.3          Fees and Expenses. All expenses incurred in connection with this Note, including attorneys’ fees, shall be paid by the parties incurring such expenses. Costs of collection and enforcement (including reasonable attorneys fees) shall, however, be paid by the Company upon demand, and shall be added to the principal balance hereof.

 

6.4           Pari Passu Notes. The Holder acknowledges and agrees that the payment of all or any portion of the Debt shall be pari passu in right of payment and in all other respects to the other Notes. In the event the Holder receives payments in excess of the Holder’s pro rata share of the Company’s payments to the holders of all of the Notes, then the Holder shall hold in trust all such excess payments for the benefit of the holders of the other Notes and shall pay such amounts held in trust to such other holders upon demand by such holders.

 

6.5           Governing Law. This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware. Each party hereto consents to exclusive jurisdiction and venue in Delaware, if in state court, and in the United States District Court for Delaware, if in United States federal court, for any suit or proceeding relating to, arising out of or arising under this Note; such courts shall have the sole and exclusive in personam, subject matter and other jurisdiction in connection with such suit or proceeding and venue shall be appropriate for all purposes in such courts.

 

6.6           Prepayment. The Debt may be prepaid, in whole or in part at any time, by the Company so long as accrued interest is paid first, and then outstanding principal.

 

6.7           Lost or Stolen Note. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Note and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation, upon surrender and cancellation of such Note, the Company, at its expense, will make and deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Note.

 

 

6.8           Notices. Any notice required or permitted hereunder shall be given in writing and shall be conclusively deemed effectively given upon personal delivery or delivery by courier, or on the first business day after transmission if sent by confirmed facsimile transmission or electronic mail transmission, or five business days after deposit in the United States first class mail, by registered or certified mail, postage prepaid, addressed as set forth below the Company’s or the Holder’s name, as applicable, on the signature page hereto, or at such other address as the Company or the Holder may designate by 10 business days’ advance written notice to the other party hereto.

 

6.9           Severability. If one or more provisions of this Note are held unenforceable under applicable law, such provision shall be excluded from this Note and the balance of this Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

 

6.10        Heading; References. All headings used herein are used for convenience only and shall not be used to construe or interpret this Note. Except where otherwise indicated, all references herein to Sections refer to Sections hereof.

 

6.11        Entire Agreement. This instrument represents the entire agreement between the parties hereto with respect to this Note and its terms and conditions.

 

6.12        Counterparts. This Note may be executed in counterparts, all of which together will constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Note by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof.

 

6.13        Waiver of Jury Trial. COMPANY AND HOLDER AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY HOLDER OR COMPANY, ON OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. HOLDER AND COMPANY EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, COMPANY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. COMPANY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT HOLDER WOULD NOT EXTEND CREDIT TO COMPANY IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS NOTE.

 

 

6.14        Electronic Execution of Certain Other Documents. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Note and the transactions contemplated hereby (including without limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Holder, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the Company has caused this Promissory Note to be issued as of the Effective Date.

 

Company:	FLUENCE ENERGY, LLC
	By:	/s/ Dennis Fehr
	Name:	Dennis Fehr
	Title:	Chief Financial Officer

 

	By:	/s/ Francis A. Fuselier
	Name:	Francis A. Fuselier
	Title:	General Counsel and Secretary

 

	Address:
	Fluence Energy, LLC
	4601 N. Fairfax Drive, Suite 600 Arlington, VA 22203
	Attn: Chief Financial Officer
	Email: dennis.fehr@fluenceenergy.com
	With a copy to:
	Attn: General Counsel
	Email: frank.fuselier@fluenceenergy.com

 

 

Holder:	SIEMENS INDUSTRY INC.
	By:	/s/ Ruth Gratzke
	Name:	Ruth Gratzke
	Title:	CEO, Siemens Industry Inc.
	By:	/s/ Marsha Smith
	Name:	Marsha Smith
	Title:	CFO, Siemens Industry Inc.

 

	Address:
	100 Technology Dr., Alpharetta GA 30005

 

[Signature Page to Promissory Note]

 

 

 

Exhibit 10.29

 

FLUENCE ENERGY, LLC

 

PROMISSORY NOTE

 

August 11, 2021

$25,000,000.00

 

Effective as of the date set forth above (the “Effective Date”) and pursuant to all of the terms and conditions hereof, Fluence Energy, LLC, a Delaware limited liability company, for value received, promises to pay to the order of AES Grid Stability LLC, its successors and assigns (the “Holder”), the sum of $25,000,000.00, plus accrued interest thereon from the Effective Date of this Promissory Note (this “Note”) until paid in full at an annual interest rate, calculated on the basis of a 360 day year over the actual number of days elapsed, equal to the lesser of (i) the Interest Rate (as defined below) and (ii) the highest rate permitted by applicable law. Unless earlier prepaid as provided in Section 2 hereof, the outstanding principal hereof and all accrued but unpaid interest thereon (the “Debt”) shall be due and payable on the earlier of (i) on or after August 11, 2022 (the “Repayment Date”) or (ii) upon the occurrence of an Event of Default (as defined below).

 

1.              Definitions. As used in this Note, the following terms, unless the context otherwise requires, have the following meanings:

 

1.1            “Business Day” means any day other than (i) a Saturday or a Sunday or (ii) a day on which banks are not required to be open or are authorized to close in New York, New York.

 

1.2            “Company” shall mean Fluence Energy, LLC, a Delaware limited liability company, and shall include any corporation, partnership, limited liability company or other entity that shall succeed to or assume the obligations of the Company under this Note.

 

1.3            “Interest Rate” shall mean 2.86%.

 

1.4            “Mandatory Prepayment Event” shall mean any of: (i) the closing of any private placement of equity securities for the purpose of raising additional cash for the Company’s business needs, but specifically excluding any issuance of equity or equity derivatives by the Company or any of its subsidiaries in connection with compensatory programs for employees, directors and other service providers; (ii) the settlement of the Company’s first underwritten public offering of its securities under the Securities Act; (iii) the settlement of the first underwritten public offering of securities of Fluence Energy, Inc., a Delaware corporation, under the Securities Act; or (iv) the closing of any merger, consolidation, reorganization, recapitalization, capital share exchange, share sale, asset sale or other similar transaction or business combination (or series of related transactions or related business combinations), in each such case, between the Company (or any direct or indirect parent entity, subsidiary, affiliate or corporate successors thereof) and any entity that is a “special purpose acquisition company” (or any of its subsidiaries or affiliates) or “blank check” company (or any of its subsidiaries or affiliates), following which the surviving or resulting corporation or its successor has a class of equity securities listed on either the New York Stock Exchange or the Nasdaq Stock Market.

 

 

1.5            “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

2.              Mandatory Prepayment. Notwithstanding anything contained herein to the contrary, the Debt shall automatically and without notice be due and payable within five (5) Business Days following the date of the closing of a Mandatory Prepayment Event.

 

3.              Interest and Payments.

 

3.1            Accrued and unpaid interest shall, at the end of each calendar month, be added to the outstanding principal balance.

 

3.2            Except as otherwise specified herein, each payment or prepayment, if any, made under this Note shall be applied to pay late charges, accrued and unpaid interest, principal, escrows (if any), and any other fees, costs and expenses which Company is obligated to pay under this Note, in such order as Holder may elect from time to time in its sole discretion.

 

3.3            Payments of interest on the outstanding accumulated principal balance shall be due and payable in arrears on the first day of each month commencing on January 1, 2022.

 

3.4            All payments on this Note are payable on or before 2:00 p.m. on the due date thereof, at the office of Holder specified herein and shall be credited on the date the funds become available lawful money of the United States. All sums payable to Holder which are due on a day on which Holder is not open for business shall be paid on the next succeeding business day and such extended time shall be included in the computation of interest.

 

3.5            Any prepayment in whole or in part shall include accrued and unpaid interest to the date of prepayment and all other sums due and payable hereunder.

 

3.6            From and after the earlier of the Repayment Date, a Mandatory Prepayment Event, or the occurrence of an Event of Default hereunder, irrespective of any declaration of maturity, all amounts remaining unpaid or thereafter accruing hereunder, shall, at Holder’s option, bear interest at a default rate of two percent (2%) per annum above the interest rate then in effect as set forth herein (the “Default Rate”), or the highest permissible rate under applicable usury law, whichever is less. Such default rate of interest shall be payable upon demand.

 

4.              Representations and Warranties. The Company hereby represents and warrants to the Holder that:

 

4.1            Organization, Good Standing and Qualification. The Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to carry on its business as presently conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its business or properties.

 

 

4.2            Authorization. All action on the part of the Company, its officers, directors and equity holders necessary for the authorization of this Note, the performance of all obligations of the Company hereunder and the sale, issuance and delivery of the Note has been taken, except to the extent of any failure of authorization that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole. This Note, when executed and delivered, will be a valid and binding obligations of the Company enforceable against the Company in accordance with its terms, except as limited by (a) applicable bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights; (b) laws relating to the availability of specific performance, injunctive relief or other equitable remedies; and (c) applicable usury laws.

 

5.              Defaults and Remedies.

 

5.1            Events of Default. Upon the occurrence of an Event of Default , the entire unpaid principal and accrued interest on the Note shall, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, be immediately due and payable. The following events shall be considered events of default (individually, an “Event of Default” and collectively, “Events of Default”):

 

(a)            If the Company fails to pay any of the principal, interest, or any other amounts payable under this Note when due and payable;

 

(b)            If the Company fails to pay any of the principal, interest, or any other amounts payable under any other Note when due and payable;

 

(c)            If the Company fails to pay any amount due to Holder under any other agreement pertaining to Company indebtedness or credit support provided by Holder;

 

(d)            any representation, warranty, certification, or other information furnished by or on behalf of the Company was false or misleading in any material respect when made;

 

(e)            If the Company files any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of, or relating to, debtors, now or hereafter in effect, or seeks the appointment of a custodian, receiver, trustee (or other similar official) of the Company or all or any substantial portion of the Company’s assets, or makes any assignment for the benefit of creditors or takes any action in furtherance of any of the foregoing, or fails to generally pay its debts as they become due; or

 

(f)            If an involuntary petition is filed, or any proceeding or case is commenced, against the Company (unless such proceeding or case is dismissed or discharged within sixty (60) days of the filing or commencement thereof) under any bankruptcy, reorganization, arrangement, insolvency, adjustment of debt, liquidation or moratorium statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar official) is applied or appointed for the Company or to take possession, custody or control of any property of the Company, or an order for relief is entered against the Company in any of the foregoing..

 

 

5.2            Remedies. Upon the occurrence of an Event of Default, each Holder shall have then, or at any time thereafter, all of the rights and remedies afforded creditors generally by the applicable federal laws or the laws of the State of Delaware at law, in equity or otherwise.

 

6.              Miscellaneous.

 

6.1            Waiver and Amendment. Any provision of this Note may be amended, waived or modified only upon the written consent of the Company and Holder.

 

6.2            Restrictions on Transfer; Assignment. The Holder may not transfer or assign all or any part of this Note without the approval of the Company, provided that the Holder may assign this Note to any affiliate within majority-ownership by The AES Corporation or Siemens AG. This Note may only be transferred in compliance with applicable state and federal laws. All rights and obligations of the Company and the Holder shall be binding upon and benefit the successors, assigns, heirs and administrators of the parties.

 

6.3            Fees and Expenses. All expenses incurred in connection with this Note, including attorneys’ fees, shall be paid by the parties incurring such expenses. Costs of collection and enforcement (including reasonable attorneys’ fees) shall, however, be paid by the Company upon demand, and shall be added to the principal balance hereof.

 

6.4            Reserved.

 

6.5            Governing Law. This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware. Each party hereto consents to exclusive jurisdiction and venue in Delaware, if in state court, and in the United States District Court for Delaware, if in United States federal court, for any suit or proceeding relating to, arising out of or arising under this Note; such courts shall have the sole and exclusive in personam, subject matter and other jurisdiction in connection with such suit or proceeding and venue shall be appropriate for all purposes in such courts.

 

6.6            Prepayment. The Debt may be prepaid, in whole or in part at any time, by the Company so long as accrued interest is paid first, and then outstanding principal.

 

6.7            Lost or Stolen Note. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or mutilation of this Note and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably satisfactory to the Company, or in the case of any such mutilation, upon surrender and cancellation of such Note, the Company, at its expense, will make and deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Note.

 

6.8            Notices. Any notice required or permitted hereunder shall be given in writing and shall be conclusively deemed effectively given upon personal delivery or delivery by courier, or on the first Business Day after transmission if sent by confirmed facsimile transmission or electronic mail transmission, or five (5) Business Days after deposit in the United States first class mail, by registered or certified mail, postage prepaid, addressed as set forth below the Company’s or the Holder’s name, as applicable, on the signature page hereto, or at such other address as the Company or the Holder may designate by ten (10) Business Days’ advance written notice to the other party hereto.

 

 

6.9            Severability. If one or more provisions of this Note are held unenforceable under applicable law, such provision shall be excluded from this Note and the balance of this Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

 

6.10         Heading; References. All headings used herein are used for convenience only and shall not be used to construe or interpret this Note. Except where otherwise indicated, all references herein to Sections refer to Sections hereof.

 

6.11          Entire Agreement. This instrument represents the entire agreement between the parties hereto with respect to this Note and its terms and conditions.

 

6.12         Counterparts. This Note may be executed in counterparts, all of which together will constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Note by facsimile, portable document format (.pdf) or other electronic transmission will be as effective as delivery of a manually executed counterpart hereof.

 

6.13         Waiver of Jury Trial. COMPANY AND HOLDER AGREE THAT, TO THE EXTENT PERMIT [ED BY APPLICABLE LAW, ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY HOLDER OR COMPANY, ON OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. HOLDER AND COMPANY EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY, AND WITH THE. ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, COMPANY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. COMPANY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT HOLDER WOULD NOT EXTEND CREDIT TO COMPANY IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS NOTE.

 

6.14         Electronic Execution of Certain Other Documents. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Note and the transactions contemplated hereby (including without limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Holder, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the Company has caused this Promissory Note to be issued as of the Effective Date.

 

Company:	FLUENCE ENERGY, LLC
	By:	/s/ Dennis Fehr
	Name:	Dennis Fehr
	Title:	CFO

 

	By:	/s/ Francis A. Fuselier
	Name:	Francis A. Fuselier
	Title:	SVP, General Counsel and Secretary

 

	Address:
	Fluence Energy, LLC
	4601 N. Fairfax Drive, Suite 600 Arlington, VA 22203
	Attn: Chief Financial Officer
	Email: dennis.fehr@fluenceenergy.com
	With a copy to:
	Attn: General Counsel
	Email: frank.fuselier@fluenceenergy.com

 

Holder:	AES GRID STABILITY LLC
	By:	/s/ Viktor Stafiychuk
	Name:	Viktor Stafiychuk
	Title:	Treasurer

 

	Address:
	4300 Wilson Blvd., Arlington, VA 22203

 

[Signature Page to Promissory Note]

 

 

 

Exhibit 21.1

 

Subsidiaries of Fluence Energy, Inc.

   

Legal Name	State or Other Jurisdiction of Incorporation or Organization
Fluence Energy, LLC	Delaware
Fluence Energy GmbH	Germany
Fluence Energy Pty Ltd	Australia
Fluence Energy Global Production Operation, LLC	Delaware
Fluence Energy Singapore Energy Singapore PTE. LTD.	Singapore

 

 

 

 

 

 

 

Exhibit 23.1 

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the reference to our firm under the caption "Experts" and to the use of our report dated June 24, 2021, with respect to the consolidated financial statements of Fluence Energy, LLC included in the Registration Statement (Form S-1) and related Prospectus of Fluence Energy, Inc. dated September 27, 2021.

 

/s/ Ernst & Young LLP

Tysons, Virginia

September 27, 2021