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United States securities and exchange commission logo
August 12, 2021
Francis Fuselier
General Counsel
Fluence Energy, Inc.
4601 Fairfax Drive, Suite 600
Arlington, VA 22203
Re: Fluence Energy,
Inc.
Amendment No. 1 to
Draft Registration Statement on Form S-1
Submitted August 6,
2021
CIK No. 0001868941
Dear Mr. Fuselier:
We have reviewed your amended draft registration statement and
have the following
comments. In some of our comments, we may ask you to provide us with
information so we
may better understand your disclosure.
Please respond to this letter by providing the requested
information and either submitting
an amended draft registration statement or publicly filing your
registration statement on
EDGAR. If you do not believe our comments apply to your facts and
circumstances or do not
believe an amendment is appropriate, please tell us why in your
response.
After reviewing the information you provide in response to these
comments and your
amended draft registration statement or filed registration statement, we
may have additional
comments.
Draft Registration Statement on Form S-1 filed August 6, 2021
General, page i
1. Please respond to all
comments in a letter filed as a correspondence on EDGAR.
2. We note your disclosure
in response to prior comment two in our letter dated July 21,
2021. Please disclose
the total economic value of the payments under the Tax Receivable
Agreement. Because it
appears that you use Adjusted EBITDA as a significant metric for
measuring your
financial performance and because this measure does not account for a
reduction in a deferred
tax asset, please describe the impact the arrangement has on the
business's total
enterprise value and, consequently, the price of the securities you will be
offering in the IPO.
The discussion of the Tax Receivable Agreement and the redirection
of cash flows to the
pre-IPO owners should be given more prominence in your prospectus
Francis Fuselier
Fluence Energy, Inc.
August 12, 2021
Page 2
than is currently present. Because the arrangement could be considered a
windfall for the
pre-IPO owners, your disclosure should adequately and prominently address
the fact that
the agreement confers significant economic benefits to the counterparties
to the
Agreement and redirects cash flows to them at the expense of public
shareholders.
Organizational Structure Following the Transactions, page 63
3. You disclose that your post-IPO organizational structure in the form of
an umbrella
partnership-C corporation ( UP-C ) will treat your Founders generally
advantageously if
they continue to hold their equity interests in an entity that is not
taxed as a corporation for
U.S. tax purposes. Please briefly explain how the UP- C structure
achieves the tax benefits
that is intended. Further, please provide an analysis of whether the tax
consequences of
the tax receivable agreement, or the tax benefits expected to result from
acquisitions of
LLC Interests from existing owners are material to an investor in the
Class A common
stock. Finally, in an appropriate location, provide a discussion
regarding why the company
chose this structure for reorganization including both the positive and
negative aspects.
You may contact Mindy Hooker, Staff Accountant at (202) 551-3732 or
John Cash,
Accounting Branch Chief at (202) 551-3768 if you have questions regarding
comments on the
financial statements and related matters. Please contact Sherry Haywood, Staff
Attorney at (202)
551-3345 or Geoffrey Kruczek, Staff Attorney at (202) 551-3641 with any other
questions.
Sincerely,
FirstName LastNameFrancis Fuselier
Division of
Corporation Finance
Comapany NameFluence Energy, Inc.
Office of
Manufacturing
August 12, 2021 Page 2
cc: Alison Haggerty
FirstName LastName