UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No.
)
Filed by the Registrant
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Filed by a party other than the Registrant
☐
Check the appropriate box:
☒ Preliminary
Proxy Statement
☐ Confidential,
for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
☐ Definitive
Proxy Statement
☐ Definitive
Additional Materials
☐ Soliciting
Material Under §240.14a-12
EOS ENERGY ENTERPRISES, INC.
(Exact Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (Check the appropriate box):
☒ No
fee required.
☐ Fee paid previously with preliminary
materials.
☐ Fee
computed on table in exhibit required by Item 25(b) per Exchange
Act Rules 14a-6(i)(1) and 0-11.
PRELIMINARY PROXY STATEMENT – SUBJECT TO COMPLETION DATED MAY 16,
2022
Eos Energy Enterprises, Inc.
3920 Park Avenue
Edison, New Jersey 08820
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON
, 2022
To the Stockholders of Eos Energy Enterprises, Inc.:
NOTICE IS HEREBY GIVEN
that a Special Meeting of Stockholders (the “Special Meeting”) of
Eos Energy Enterprises, Inc., a Delaware corporation (the
“Company”), will be a virtual meeting conducted exclusively via
live webcast at www.virtualshareholdermeeting.com/EOSE2022 on
, 2022, at 10:00 a.m. Eastern time for the
following purposes:
1.to
approve, in accordance with Nasdaq Marketplace Rule 5635(d), the
issuance of our common stock to YA II PN, Ltd. (“Yorkville”) in
excess of the exchange cap of the Standby Equity Purchase Agreement
dated April 28, 2022, by and between the Company and Yorkville
(included in Appendix A to this proxy statement) (the “Exchange Cap
Proposal”);
2.to
approve an amendment to our Third Amended and Restated Certificate
of Incorporation to increase the authorized shares of common stock
from 200,000,000 to 300,000,000 (the “Authorized Shares
Amendment”); and
3.to
approve an adjournment of the Special Meeting, if necessary, to
solicit additional proxies if there are not sufficient votes in
favor of the Exchange Cap Proposal and/or the Authorized Shares
Amendment (the “Adjournment Proposal”).
The foregoing items of business are more fully described in the
Proxy Statement accompanying this Notice of Special Meeting of
Stockholders. Only stockholders who owned common stock of the
Company at the close of business on May 25, 2022 (the “Record
Date”) can vote at this meeting or any adjournments that take
place.
The presence, in person or represented by proxy, at the Special
Meeting of the holders of shares of outstanding common stock
representing a majority of the voting power of all outstanding
shares of common stock entitled to vote at the Special Meeting will
be required to establish a quorum at the Special Meeting.
Abstentions and “broker non-votes” will be treated as shares
present and entitled to vote for quorum purposes.
Approval of the Exchange Cap Proposal and the Adjournment Proposal
will require the affirmative vote of the majority of the total
votes cast on such proposal. Approval of the Authorized Shares
Amendment will require the affirmative vote of the holders of at
least 662⁄3%
of outstanding shares of our common stock as of the Record
Date.
The Board of Directors recommends that you vote:
Proposal 1:
FOR
the Exchange Cap Proposal;
Proposal 2:
FOR
the Authorized Shares Amendment;
Proposal 3:
FOR
the Adjournment Proposal;
2022 Virtual Special Stockholder Meeting
The Board of Directors has determined to hold the Special Meeting
virtually to facilitate stockholder attendance and participation by
stockholders from all locations at no cost. We believe this is the
right choice for the Company at this time, as it enables engagement
with our stockholders, regardless of size, resources, or physical
location while safeguarding the health of our stockholders, Board
and management. We are committed to ensuring that stockholders will
be afforded the same rights and opportunities to participate as
they would at an in-person meeting. You will be able to attend the
meeting online, vote your shares electronically and submit
questions during the meeting by visiting
www.virtualshareholdermeeting.com/EOSE2022 at the meeting date and
time. The meeting webcast will begin promptly at 10:00 a.m. Eastern
Time. We encourage you to access the meeting prior to the start
time. Online log-in will begin at 9:45 a.m. Eastern Time, and you
should allow ample time for the log-in process. If you experience
technical difficulties during the log-in process or during the
meeting please call the technical support number that will be
posted on the virtual Special Meeting login page for assistance.
Technical assistance will be available through the conclusion of
the Special Meeting.
YOUR VOTE IS IMPORTANT. WHETHER OR NOT YOU PLAN TO ATTEND THE
VIRTUAL MEETING ONLINE, WE ENCOURAGE YOU TO READ THE ACCOMPANYING
PROXY STATEMENT, AND SUBMIT YOUR PROXY AS SOON AS POSSIBLE USING
ONE OF THE THREE CONVENIENT VOTING METHODS DESCRIBED IN
“INFORMATION ABOUT THE PROXY PROCESS AND VOTING” IN THE PROXY
STATEMENT. IF YOU RECEIVE MORE THAN ONE SET OF PROXY MATERIALS
BECAUSE YOUR SHARES ARE REGISTERED IN DIFFERENT NAMES OR ADDRESSES,
EACH PROXY SHOULD BE SIGNED AND SUBMITTED TO ENSURE THAT ALL OF
YOUR SHARES WILL BE VOTED.
By Order of the Board of Directors
/s/Melissa Berube
Melissa Berube
General Counsel and Corporate Secretary
, 2022
TABLE OF CONTENTS
Eos Energy Enterprises, Inc.
3920 Park Avenue
Edison, New Jersey 08820
PROXY STATEMENT
FOR THE SPECIAL MEETING OF STOCKHOLDERS
, 2022
We have made available our proxy materials because the Board of
Directors (the “Board”) of Eos Energy Enterprises, Inc. (referred
to herein as the “Company,” “Eos,” “we,” “us” or “our”) is
soliciting your proxy to vote at our Special Meeting of
Stockholders (the “Special Meeting”) to be held on
, 2022, at 10:00 a.m. Eastern time, at
www.virtualshareholdermeeting.com/EOSE2022.
◦This
Proxy Statement summarizes information about the proposals to be
considered at the Special Meeting and other information you may
find useful in determining how to vote.
◦The
Proxy Card or voting instruction form is the means by which you
actually authorize another person to vote your shares in accordance
with your instructions.
In addition to solicitations by mail, our directors, officers and
employees, without additional remuneration, may solicit proxies by
telephone, e-mail and personal interviews. All costs of
solicitation of proxies will be borne by us. Brokers, custodians
and fiduciaries will be requested to forward proxy soliciting
material to the owners of stock held in their names, and we will
reimburse them for their reasonable out-of-pocket expenses incurred
in connection with the distribution of proxy
materials.
Pursuant to the rules adopted by the Securities and Exchange
Commission (the “SEC”), we have elected to provide access to our
proxy materials by sending you this full set of proxy materials,
including a Proxy Card. Accordingly, the proxy statement and
accompanying Proxy Card will first be mailed to our stockholders of
record as of May 25, 2022 (the “Records Date”) for the first
time on or about , 2022.
Corporate Information
On November 16, 2020 (the “Closing Date”), B. Riley Principal
Merger Corp. II. (“BMRG”), Eos Energy Storage LLC ("EES LLC"), BMRG
Merger Sub, LLC (“Merger Sub I”), BMRG Merger Sub II, LLC (“Merger
Sub II”), New Eos Energy LLC (“Newco”) and AltEnergy Storage VI,
LLC consummated the transactions contemplated under the Merger
Agreement entered into on September 7, 2020 between the parties,
following the approval at the special meeting of the stockholders
of BMRG held on October 15, 2020. On the Closing Date, (1) Merger
Sub I merged with and into Newco, with Newco continuing as the
surviving company and a wholly-owned subsidiary of the Company, and
(2) Newco then merged with and into Merger Sub II, with Merger Sub
II continuing as the surviving company and a wholly-owned
subsidiary of the Company (together, the “Business Combination”).
In connection with the Business Combination, the registrant changed
its name from B. Riley Merger Corp. II to Eos Energy Enterprises,
Inc., and Merger Sub II changed its name from BMRG Merger Sub II,
LLC to Eos Energy Enterprises Intermediate Holdings,
LLC.
PROPOSAL NO. 1
APPROVAL, IN ACCORDANCE WITH NASDAQ MARKETPLACE RULE 5635(D), OF
THE ISSUANCE OF OUR COMMON STOCK TO YORKVILLE IN EXCESS OF THE
EXCHANGE CAP OF THE STANDBY EQUITY PURCHASE AGREEMENT DATED APRIL
28, 2022, BY AND BETWEEN THE COMPANY AND YORKVILLE (THE “EXCHANGE
CAP PROPOSAL”)
Background
As previously disclosed, on April 28, 2022, we entered into a
Standby Equity Purchase Agreement (the “SEPA,” included as Appendix
A to this Proxy Statement) with YA II PN, Ltd. (“Yorkville”).
Pursuant to the SEPA, the Company has the right, but not the
obligation, to sell to Yorkville up to $200,000,000 of its shares
of common stock (the “SEPA Shares”), par value $0.0001 per share,
at the Company’s request any time during the commitment period
commencing on April 28, 2022 and terminating on the earliest of (i)
the first day of the month following the 24-month anniversary of
the SEPA and (ii) the date on which Yorkville has made payment of
any advances requested pursuant to the SEPA for shares of the
Company’s common stock equal to the commitment amount of
$200,000,000. Each sale the Company requests under the SEPA (an
“Advance”) may be for a number of shares of common stock with an
aggregate value of up to $20,000,000. The shares would be purchased
at 97.0% of the Market Price (as defined below) and would be
subject to certain limitations, including that Yorkville could not
purchase any shares that would result in it owning more than 9.99%
of the Company’s outstanding common stock at the time of an Advance
(the "Ownership Limitation") or 19.99% of the Company's outstanding
common stock as of the date of the SEPA (the "Exchange Cap").
“Market Price” is defined in the SEPA as the average of the VWAPs
(as defined below) during each of the three consecutive trading
days commencing on the trading day following the Company’s
submission of an Advance notice to Yorkville. “VWAP” is defined in
the SEPA to mean, for any trading day, the daily volume weighted
average price of the Company’s common stock for such date on The
Nasdaq Capital Market as reported by Bloomberg L.P. during regular
trading hours
As of the date of the SEPA, there were 53,980,608 shares of the
Company’s common stock issued and outstanding. Accordingly, the
Exchange Cap is 10,790,723 shares. The SEPA provides that
(a) the Exchange Cap will not apply if the Company’s
stockholders have approved issuances in excess of the Exchange Cap
in accordance with the rules of The Nasdaq Capital Market, and
(b) as to any Advance, if the purchase price of shares in
respect of such Advance equals or exceeds $2.15 per share (which
represents the lower of (i) the closing price of common stock as
reported on the “Historical NOCP” section of the web site
Nasdaq.com for the ticker symbol “EOSE.” (the “Nasdaq Official
Closing Price”) on the trading day immediately preceding the date
of the SEPA; or (ii) the average Nasdaq Official Closing Price for
the five trading days immediately preceding the date of the SEPA).
As of the date of this proxy statement, we have offered and sold to
Yorkville an aggregate of shares of our
common stock, of which
shares are counted
against the Exchange Cap and
are not counted
against the Exchange Cap because they exceeded $2.15 at the time
they were sold.
Pursuant to the SEPA, we will use the proceeds from the sale of
SEPA Shares for working capital and other general corporate
purposes or, if different, in a manner consistent with the
application thereof described in the registration statement
pursuant to which such shares are registered with the SEC. There
are no other restrictions in the SEPA on future financing
transactions, provided such use of proceeds also does not violate
the laws and regulations set forth by the U.S. Office of Foreign
Assets Control.
Reasons for Seeking Stockholder Approval
Our common stock is currently listed on The Nasdaq Capital Market
and, as such, we are subject to Nasdaq Marketplace Rules (the
“Nasdaq Rules”). Nasdaq Listing Rule 5635(d) requires us to obtain
stockholder approval prior to the sale, issuance or potential
issuance of common stock (or securities convertible into or
exercisable for common stock) in connection with a transaction
other than a public offering at a price less than the “Minimum
Price” which either alone or together with sales by officers,
directors or substantial stockholders of the company equals 20% or
more of the common stock or 20% or more of the voting power
outstanding before the issuance. For Nasdaq purposes, “Minimum
Price” means a price that is the lower of: (i) the Nasdaq Official
Closing Price (as reflected on Nasdaq.com) immediately preceding
the signing of the binding agreement; or (ii) the average Nasdaq
Official Closing Price of the common stock (as reflected on
Nasdaq.com) for the five trading days immediately preceding the
signing of the binding agreement. Stockholder approval of this
proposal will constitute stockholder approval for purposes of
Nasdaq Listing Rule 5635(d). Our Board has determined that the SEPA
and our ability to issue the SEPA Shares thereunder in excess of
the Exchange Cap is in the best interests of the Company and its
stockholders because the ability to sell the SEPA Shares to
Yorkville provides us with a reliable source of capital for working
capital and general corporate purposes.
We cannot predict the Market Price (as defined above) of our common
stock at any future date, and therefore cannot predict the number
of SEPA Shares to be issued under the SEPA or whether the Market
Price for any Advance will be greater than the Minimum Price (as
defined above) under the Nasdaq Rules. Under certain circumstances,
it is possible that we may need to issue shares of common stock to
Yorkville at a price that is less than the Minimum Price in excess
of the Exchange Cap, which would require stockholder approval
pursuant to Nasdaq Listing Rule 5635(d).
Therefore, we are seeking stockholder approval under this Proposal
No. 1 to issue shares of common stock in excess of the Exchange
Cap, if necessary, to Yorkville under the terms of the SEPA. The
failure of the Company’s stockholders to approve this Proposal No.
1 will make it impossible for the Company to sell, at less than the
Minimum Price, shares of common stock to Yorkville in excess of the
Exchange Cap. However, it would be possible to sell shares to
Yorkville in excess of the Exchange Cap if the sale of shares
covered by any Advance is equal to or greater than the Minimum
Price for such Advance.
Consequences of Non-Approval
As previously disclosed, as of December 31, 2021, the Company
concluded that there was substantial doubt about its ability to
continue to operate as a going concern for the 12 months following
the issuance of its consolidated financial statements. The ability
of the Company to continue as a going concern is dependent upon the
Company’s ability to access additional sources of capital,
including, but not limited to, equity and/or debt financings,
licensing revenue, and government loans or grants. If the Company
is unable to raise additional capital, the Company may have to
significantly delay, scale back or discontinue the development or
commercialization of its product and/or consider a sale or other
strategic transaction. Accordingly, our Board believes that
providing the Company the flexibility to issue shares of common
stock in excess of the Exchange Cap is advisable and in the best
interests of the Company and our stockholders
Effect on Current Stockholders
The issuance of shares of common stock under the SEPA, including
any shares that may be issued in excess of the Exchange Cap
(including any such shares issued below the Minimum Price that are
the subject of this Proposal No. 1), would result in an increase in
the number of shares of common stock outstanding, and our
stockholders will incur dilution of their percentage
ownership. Because the number of SEPA Shares that may be issued to
Yorkville pursuant to the SEPA is determined based on the Market
Price at the time of issuance, the exact magnitude of the dilutive
effect cannot be conclusively determined. However, the dilutive
effect may be material to our current stockholders.
Required Vote
Approval of Proposal No. 1 requires the affirmative vote of a
majority of the votes cast on the proposal. Abstentions and “broker
non-votes,” if any, will have no effect on the outcome of this
vote.
THE BOARD RECOMMENDS A VOTE
FOR
APPROVAL, IN ACCORDANCE WITH NASDAQ MARKETPLACE RULE 5635(D), OF
THE ISSUANCE OF OUR COMMON STOCK TO YORKVILLE IN EXCESS OF THE
EXCHANGE CAP OF THE STANDBY EQUITY PURCHASE AGREEMENT DATED APRIL
28, 2022, BY AND BETWEEN THE COMPANY AND YORKVILLE
PROPOSAL NO. 2
APPROVAL OF AN AMENDMENT TO OUR THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION TO INCREASE THE AUTHORIZED SHARES OF
COMMON STOCK FROM 200,000,000 TO 300,000,000 (THE “AUTHORIZED
SHARES AMENDMENT”)
After careful consideration, the Board has adopted, declared
advisable and directed that there be submitted to the stockholders
at the Special Meeting a proposed amendment of the Company’s Third
Amended and Restated Certificate of Incorporation (the “Certificate
of Incorporation”) to increase the number of shares of authorized
common stock from 200,000,000 to 300,000,000.
Background
Article IV of the Certificate of Incorporation currently
authorizes the Company to issue up to 200,000,000 shares of common
stock and 1,000,000 shares of preferred stock of the Company, par
value $0.0001 per share (“preferred stock”). As of May 4, 2022,
approximately 54,445,725 shares of common stock were issued,
including zero held as treasury shares, with warrants outstanding
to purchase up to an aggregate of 7,326,654 shares of common stock,
options and restricted stock units outstanding to acquire up to an
aggregate of 4,929,476 shares of common stock, approximately
1,803,861 shares of common stock reserved for possible future
issuance pursuant to the remaining authorized and unissued stock
awards under the Amended and Restated 2020 Incentive Plan and a
maximum of 6,516,359 shares of common stock issuable upon
conversion of the Company’s outstanding 5%/6% Convertible Senior
PIK Toggle Notes due 2026. As a result, approximately 124,977,925
authorized shares remain available for issuance for future
purposes. The adoption of the proposed Authorized Shares Amendment
would provide for an additional 100,000,000 authorized shares of
common stock for future issuance, which would bring the aggregate
total of authorized shares of common stock to
300,000,000.
The Authorized Shares Amendment amends and restates
Section 4.1(b) of Article IV of the Certificate of
Incorporation in its entirety to read as follows:
The total number of shares of all classes of capital stock, each
with a par value of $0.0001 per share, which the Corporation is
authorized to issue is 301,000,000 shares, consisting of (a)
300,000,000 shares of common stock (the “Common Stock”) and (b)
1,000,000 shares of preferred stock (the “Preferred
Stock”).
Reasons for Seeking Stockholder Approval
As of May 25, 2022, the Company had approximately
% of the authorized shares of common stock
unissued and unreserved for issuance. The additional shares may be
used for various purposes without further stockholder approval
(except as required by law or Nasdaq rules). These purposes may
include: (i) raising capital, if the Company has an
appropriate opportunity, through offerings of common stock or
securities that are convertible into common stock, including sales
of common stock pursuant to the SEPA described above in Proposal
No. 1; (ii) exchanging common stock or securities that are
convertible into common stock for other outstanding securities;
(iii) providing equity incentives to employees, officers,
directors, customers, consultants, or advisors; (iv) expanding
the Company’s business through the acquisition of other businesses
or assets; (v) stock splits, dividends, and similar
transactions; (vi) debt or equity restructuring or refinancing
transactions; and (vii) other corporate purposes.
The Board has not proposed the increase in the number of authorized
shares of common stock with the intent of preventing or
discouraging any actual or threatened tender offers or takeover
attempts of the Company and the Board is not currently aware of any
attempt or plan to acquire control of the Company. Rather, the
Authorized Shares Amendment has been prompted by business and
financial considerations, as set out above, and it is the intended
purpose of the Authorized Shares Amendment to provide greater
flexibility to the Board in considering and planning for our
potential future corporate needs.
Rights of Additional Authorized Shares
The additional authorized shares contemplated by the Authorized
Shares Amendment would be a part of the existing class of our
common stock and, if issued, would have the same rights and
privileges as the shares of our common stock presently issued and
outstanding. Holders of shares of our common stock (solely in their
capacity as holders of shares of our common stock) have no
preemptive rights or rights to convert their shares of our common
stock into any other securities. Accordingly, should the Board
elect to issue additional shares of our common stock, existing
holders of shares of our common stock would not have any
preferential rights to purchase the shares.
Effect on Current Stockholders
Future issuance of common stock or securities convertible into our
common stock could have a dilutive effect on the earnings per
share, book value per share, voting power and percentage
interest of holdings of current stockholders. In addition, the
availability of additional shares of our common stock for issuance
could, under certain circumstances, discourage or make more
difficult efforts to obtain control of the Company under a possible
take-over scenario. The Board is not aware of any attempt, or
contemplated attempt, to acquire control of the Company. This
proposal is not being presented with the intent that it be used to
prevent or discourage any acquisition attempt, but nothing would
prevent the Board from taking any appropriate actions not
inconsistent with its fiduciary duties. The Authorized Shares
Amendment does not affect the number of shares or rights of
preferred stock authorized.
Effectiveness of the Amendment
If this proposal is approved by the Company’s stockholders, the
Authorized Shares Amendment will become effective upon the filing
of a Certificate of Amendment to the Certificate of Incorporation
with the Delaware Secretary of State, which the Company intends to
do promptly following the Annual Meeting. If the proposal is not
approved by the Company’s stockholders, the Authorized Shares
Amendment will not be implemented and the Company’s capitalization
will remain as it is currently.
Required Vote
Approval of Proposal No. 2 requires the affirmative vote of the
holders of at least 662⁄3%
of outstanding shares of our common stock as of the Record Date to
approve the amendment to the Certificate of Incorporation to
increase the authorized shares of common stock. Abstentions and
“broker non-votes”, if any, will have the effect of votes “AGAINST”
the proposal.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
FOR APPROVAL
OF AN AMENDMENT TO OUR THIRD AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION TO INCREASE THE AUTHORIZED SHARES OF COMMON STOCK
FROM 200,000,000 TO 300,000,000.
PROPOSAL NO. 3
APPROVAL OF AN ADJOURNMENT OF THE SPECIAL MEETING, IF NECESSARY, TO
SOLICIT ADDITIONAL PROXIES IF THERE ARE NOT SUFFICIENT VOTES IN
FAVOR OF THE EXCHANGE CAP PROPOSAL AND/OR THE AUTHORIZED SHARES
AMENDMENT
At the Special Meeting, if necessary, stockholders will vote on
this Proposal No. 3. If this Proposal No. 3 is adopted,
the Board will have the discretion to adjourn the Special Meeting
to a later date or dates to permit further solicitation of proxies
in the event that there are not sufficient votes at the time of the
Special Meeting to approve Proposal No. 1 and/or Proposal
No. 2. It is possible for us to obtain sufficient votes to
approve this Proposal No. 3 but not receive sufficient votes
to approve Proposal No. 1 and/or Proposal No. 2. In such
a situation, the Company could adjourn the Special Meeting for any
number of days or hours as permitted under applicable law and
attempt to solicit additional votes in favor of Proposal No. 1
and/or Proposal No. 2.
This Proposal No. 3 will only be presented at the Special
Meeting if there are not sufficient votes represented in person or
by proxy for Proposal No. 1 and/or Proposal
No. 2.
Required Vote
The approval of Proposal No. 3 requires the affirmative vote of a
majority of the votes cast on the proposal. Abstentions and “broker
non-votes,” if any, will have no effect on the outcome of this
vote.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE
FOR APPROVAL
OF AN ADJOURNMENT OF THE SPECIAL MEETING, IF NECESSARY, TO SOLICIT
ADDITIONAL PROXIES IF THERE ARE NOT SUFFICIENT VOTES IN FAVOR OF
THE EXCHANGE CAP PROPOSAL AND/OR THE AUTHORIZED SHARES
AMENDMENT.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth information relating to the
beneficial ownership of our common stock as of May 4, 2022,
by:
•each
person, or group of affiliated persons, known by us to beneficially
own more than 5% of outstanding shares of our common
stock;
•each
of our directors, nominees and named executive officers;
and
•all
directors and executive officers as a group.
A person is a “beneficial owner” of a security if that person has
or shares voting or investment power over the security or if that
person has the right to acquire sole or shared voting or investment
power over the security within 60 days. Unless otherwise noted,
these persons, to our knowledge, have sole voting and investment
power over the shares listed. In computing the number of shares of
common stock beneficially owned by a person and the percentage
ownership of that person, we deemed outstanding shares of common
stock subject to options, warrants and restricted stock units held
by that person that are currently exercisable or exercisable within
60 days of May 4, 2022
The percentage of shares beneficially owned is computed on the
basis of 54,445,725
shares of our common stock outstanding and 7,326,654 warrants, each
exercisable for one common stock share, outstanding as of
May 4, 2022. Unless otherwise indicated below, the address for
each beneficial owner listed is c/o 3920 Park Avenue, Edison, New
Jersey 08820.
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares of Common Stock Beneficially Owned |
|
Name of beneficial owner |
|
Number of Securities Beneficially Owned |
Percentage |
|
5% Stockholder
|
|
|
|
|
B. Riley Financial, Inc. (5)
|
|
5,696,547 |
9.2% |
|
Wood River Capital, LLC (6) |
|
7,537,361 |
12.2% |
|
Directors and Executive Officers
|
|
|
|
|
Joe Mastrangelo (1) (2)
|
|
842,801 |
1.4% |
|
Randall Gonzales (1) (2) |
|
43,700 |
* |
|
Sagar Kurada (1) (2)
|
|
153,396 |
* |
|
Jody Markopoulos
|
|
41,666 |
* |
|
Claude Demby (1) (2)
|
|
18,596 |
* |
|
Russell Stidolph (2) (3) (4)
|
|
2,885,146 |
4.7% |
|
Daniel Shribman (1) (2)
|
|
1,043,498 |
1.7% |
|
Alex Dimitrief (1) (2)
|
|
70,465 |
* |
|
Audrey Zibelman (1) (2)
|
|
27,483 |
* |
|
Marian “Mimi” Walters (1) (2)
|
|
32,433 |
* |
|
All directors, nominees and executive officers as a group (10
individuals)
|
|
4,991,772 |
8.1% |
—————
*Less than 1%.
(1) The business address of each of these entities or individuals
is c/o 3920 Park Avenue Edison, New Jersey 08820.
(2) Includes shares of common stock underlying restricted stock
units.
(3) Represents (i) 222,914 shares of common stock issuable upon
exercise of vested options held by Mr. Stidolph, (ii)5,198 shares
of common stock directly owned by Mr. Stidolph, and (iii) 2,653,272
shares of common stock in which Mr. Stidoloph has a pecuniary
interest in that are held directly by AltEnergy LLC, or AltEnergy,
AltEnergy Storage LLC, or AltEnergy I, AltEnergy Storage II LLC, or
AltEnergy II, AltEnergy Storage V LLC, or AltEnergy V, AltEnergy VI
LLC, or AltEnergy VI, AltEnergy Storage Bridge LLC, or Bridge,
AltEnergy Transmission LLC, or Transmission, AltEnergy Storage
Bridge Phase II LLC, or Bridge II (collectively, the “AltEnergy
Shares”). Mr. Stidolph is the managing director of AltEnergy, the
managing member of each of AltEnergy I, AltEnergy II, AltEnergy VI,
AltEnergy V, Bridge, Transmission and Bridge II, and has voting and
dispositive power with respect to the AltEnergy Shares. Mr.
Stidolph disclaims beneficial ownership of these shares, except to
the extent of his pecuniary interest therein. The address of Mr.
Stidolph and each of the above referenced entities is 137 Rowayton
Avenue, Rowayton, CT 06853.
(4) Represents securities held directly by AltEnergy LLC, or
AltEnergy, AltEnergy Storage LC, or AltEnergy I, AltEnergy Storage
II LLC, or AltEnergy II, AltEnergy Storage V LLC, or AltEnergy V,
AltEnergy VI LLC, or AltEnergy VI, AltEnergy Storage Bridge LLC, or
Bridge, AltEnergy Transmission LLC, or Transmission, AltEnergy
Storage Bridge Phase II, or Bridge II. Mr. Stidolph is the managing
director of AltEnergy, the managing member of each of AltEnergy I,
AltEnergy II, AltEnergy VI, AltEnergy V, Bridge, Transmission and
Bridge II, and has voting and dispositive power with respect to the
AltEnergy Shares. Mr. Stidolph disclaims beneficial ownership of
these shares, except to the extent of his pecuniary interest
therein.
(5) The information in the table above is based solely on
information contained in this stockholder’s Schedule 13G under the
Exchange Act filed by such stockholder with the SEC. The amount
includes (i) shares of common stock held by BRF Investment LLC
("BRFI"), (ii) shares of common stock owned by Bryant Riley and
(iii) shares of common stock underlying warrants held by Bryant
Riley. Bryant Riley is the Chairman and Co-Chief Executive Officer
of B. Riley Financial, Inc. and has voting and dispositive power
over the securities held by BRF. The address for this stockholder
is 11100 Santa Monica Blvd, Suite 800, Los Angeles, CA
90025.
(6) The information in the table above is based solely on
information contained in this stockholder’s Schedule 13G under the
Exchange Act filed by such stockholder with the SEC. Represents (i)
2,538,261 shares of common stock held by Wood River Capital, LLC
(“Wood River”) and (ii) 5,145,000 shares of common stock issuable
upon conversion of the outstanding 5%/6% Convertible Senior PIK
Toggle Notes due 2026 held by Wood River. Wood River is
beneficially owned by SCC Holdings, LLC (“SCC”), SCC is
beneficially owned by KIM, LLC (“KIM”), KIM is beneficially owned
by Koch Investment Group, LLC (“KIG”), KIG is beneficially owned by
Koch Investment Group Holdings, LLC (“KIGH”), and KIGH is
beneficially owned by Koch Industries, Inc. (“Koch Industries”), in
each case by means of ownership of all voting equity instruments.
The address for this stockholder is 4111 E. 37th Street North,
Wichita, KS 67220.
ADDITIONAL INFORMATION
Householding of Proxy Materials
The SEC has adopted rules that permit companies and intermediaries
(e.g., brokers) to satisfy the delivery requirements for proxy
statements and annual reports with respect to two or more
stockholders sharing the same address by delivering a single proxy
statement addressed to those stockholders. This process, which is
commonly referred to as “householding,” potentially means extra
convenience for stockholders and cost savings for
companies.
Brokers with account holders who are Eos stockholders may be
“householding” our proxy materials. A single proxy statement may be
delivered to multiple stockholders sharing an address unless
contrary instructions have been received from the affected
stockholders. Once you have received notice from your broker that
it will be “householding” communications to your address,
“householding” will continue until you are notified otherwise or
until you notify your broker or the Company that you no longer wish
to participate in “householding.”
If, at any time, you no longer wish to participate in
“householding” and would prefer to receive a separate proxy
statement and annual report, you may (1) notify your broker or (2)
direct your written request to our Investor Relations Department at
3920 Park Avenue, Edison, New Jersey 08820, 765-201-0591 or email
ir@eose.com. Stockholders who currently receive multiple copies of
this Proxy Statement at their address and would like to request
“householding” of their communications should contact their broker.
In addition, the Company will promptly deliver, upon written
request to the address above, a separate copy of the Proxy
Statement and Proxy Card to a stockholder at a shared address to
which a single copy of the documents was delivered.
Note About Our Website
Web links to our website throughout this document are provided for
convenience only. Please note that information on or accessible
through our website is not part of, or incorporated by reference
into, this Proxy Statement.
Other Matters
As of the date of this Proxy Statement, the Board does not intend
to present any matters other than those described herein at the
Special Meeting and is unaware of any matters to be presented by
other parties. If other matters are properly brought before the
Special Meeting for action by the stockholders, proxies will be
voted in accordance with the recommendation of the Board or, in the
absence of such a recommendation, in the discretion of the proxy
holder.
We have filed our Annual Report on Form 10-K for the year ended
December 31, 2021 and our Quarterly Report on Form 10-Q for the
quarter ended March 31, 2022 with the SEC. These documents are
available free of charge at the SEC’s web site at www.sec.gov. Upon
written request by a Eos stockholder, we will mail without charge a
copy of our Annual Report on Form 10-K and our Quarterly Report on
Form 10-Q, including the financial statements and financial
statement schedules, but excluding exhibits to the Annual Report on
Form 10-K and Quarterly Report on Form 10-Q. Exhibits to the Annual
Report on Form 10-K and Quarterly Report on Form 10-Q are available
upon payment of a reasonable fee, which is limited to our expenses
in furnishing the requested exhibit. All requests should be
directed our Investor Relations department at 3920 Park Avenue,
Edison, New Jersey 08820, 765-201-0591 or email
ir@eose.com.
INFORMATION ABOUT THE PROXY PROCESS AND VOTING
Why am I receiving these materials?
The Board is providing printed proxy materials to you, in
connection with the Board’s solicitation of proxies for use at the
Company’s Special Meeting to be held on
, 2022, at 10:00
a.m. Eastern Time, and at any adjournment or postponement thereof,
for the purpose of considering and acting upon the matters set
forth in this proxy statement. These proxy materials are being
distributed to you beginning on ,2022. As a
stockholder, you are invited to attend the virtual Special Meeting
and are requested to vote on the proposals described in this proxy
statement.
Who can vote at the Special Meeting?
The outstanding voting securities of Eos are shares of common
stock, $0.0001 par value per share. There
were shares of common stock outstanding as
of May 25, 2022. Only stockholders of record at the close of
business on the Record Date will be entitled to vote at the Special
Meeting.
Stockholder of Record: Shares Registered in Your Name
If you are a stockholder of record as of May 25, 2022, you may
vote online during the virtual Special Meeting. Alternatively, you
may vote by proxy by using the accompanying Proxy Card, over the
internet or by telephone. Whether or not you plan to attend online
the virtual Special Meeting, we encourage you to vote by proxy
ahead of the Special Meeting to ensure your vote is counted. Even
if you have submitted a proxy before the Special Meeting, you may
still attend the Special Meeting and vote. In such case, your
previously submitted proxy will be disregarded.
•To
vote using the Proxy Card, simply complete, sign and date the
accompanying Proxy Card and return it promptly in the envelope
provided. If you return your signed Proxy Card to us before the
Special Meeting, we will vote your shares in accordance with the
Proxy Card.
•To
vote by proxy over the internet before the Special Meeting, follow
the instructions as directed on the enclosed Proxy
Card.
•To
vote by telephone, you may vote by proxy by calling the toll-free
number found on the enclosed Proxy Card.
•To
vote at the virtual Special Meeting, you will need the 16-digit
control number included on your Proxy Card. The meeting webcast
will begin promptly at 10:00 a.m., Eastern time. We encourage you
to access the meeting prior to the start time. Online log-in will
begin at 9:45 a.m. Eastern time, and you should allow ample time
for the log-in process. If you encounter any difficulties accessing
the virtual meeting during the log-in or meeting time, please call
the technical support number that will be posted on the virtual
Special Meeting login page for assistance.
Beneficial Owner: Shares Registered in the Name of a Broker, Bank
or Other Agent
If, on the Record Date, your shares were held in an account at a
brokerage firm, bank, dealer or other similar organization, then
you are the beneficial owner of shares held in “street name” and
these proxy materials are being forwarded to you by that
organization. The organization holding your account is considered
the stockholder of record for purposes of voting at the Special
Meeting. As a beneficial owner, you have the right to direct your
broker or other agent on how to vote the shares in your
account.
If you are a beneficial owner as described above, you should have
received a voting instruction form from the brokerage firm, bank,
dealer or other similar organization that holds your shares. Follow
the instructions they provide to ensure that your vote is
counted.
We provide internet proxy voting to allow you to vote your shares
online before the Special Meeting, with procedures designed to
ensure the authenticity and correctness of your proxy vote
instructions. However, please be aware that you must bear any costs
associated with your internet access, such as usage charges from
internet access providers and telephone companies.
What is the required vote to approve the proposals discussed in
this Proxy Statement?
Approval of the Exchange Cap Proposal and the Adjournment Proposal
will require the affirmative vote of the majority of the total
votes cast on such proposal. Approval of the Authorized Shares
Amendment will require the affirmative vote of the holders of at
least 662⁄3%
of outstanding shares of our common stock. Abstentions and “broker
non-votes,” if any, will have no effect on the outcome of the
Exchange Cap Proposal or the Adjournment Proposal. Abstentions and
“broker non-votes” will have the effect of votes “AGAINST” the
Authorized Shares Amendment.
What are “broker non-votes”?
If your shares are held by your broker as your nominee (that is, in
“street name”), you will need to instruct your broker to vote your
shares. If you do not give instructions to your broker, your broker
can vote your shares with respect to “routine” items, but not with
respect to “non-routine” items.
If a broker, bank, custodian, nominee or other record holder of
common stock indicates on a proxy that it does not have
discretionary authority to vote certain shares on a particular
proposal, then those shares will be treated as “broker non-votes”
with respect to that proposal.
How many votes do I have?
On each matter to be voted upon, you have one vote for each share
of common stock you own as of the Record Date.
What if I return a Proxy Card but do not make specific
choices?
If we receive a signed and dated Proxy Card and the Proxy Card does
not specify how your shares are to be voted, your proxy (one of the
individuals named on your Proxy Card) will vote your shares in his
or her discretion.
What does it mean if I receive more than one set of
materials?
If you receive more than one set of materials, your shares are
registered in more than one name or are registered in different
accounts. In order to vote all the shares you own, you must either
sign and return all of the Proxy Cards or follow the instructions
for any alternative voting procedure on each of the Proxy
Cards.
Can I change my vote after submitting my proxy?
Yes. You can revoke your proxy at any time before the final vote at
the Special Meeting. If you are the record holder of your shares,
you may revoke your proxy in any one of three ways:
•You
may submit another properly completed proxy with a later
date.
•You
may send a written notice that you are revoking your proxy to our
Investor Relations Department at 3920 Park Avenue, Edison, New
Jersey 08820, 765-201-0591 or email ir@eose.com.
•You
may attend the virtual Special Meeting through online presence and
vote online. Simply attending the Special Meeting will not, by
itself, revoke your prior proxy.
If your shares are held by your broker, bank or other agent, you
should follow the instructions provided by them.
When are stockholder proposals due for next year’s Annual
Meeting?
If you wish to submit a stockholder proposal pursuant to Rule 14a-8
of the Securities Exchange Act to be considered for inclusion in
next year’s proxy materials, your proposal must be submitted in
writing by December 1, 2022 to Eos Energy Enterprises Inc., c/o
Laura Ellis, 3920 Park Avenue, Edison, New Jersey 08820, or email
at ir@eose.com.
Pursuant to our bylaws, in order for a stockholder to present a
proposal at the annual meeting, other than 14a-8 proposals to be
included in the Proxy Statement as described above, or to nominate
a director, you must give timely notice thereof in writing to the
Secretary at Eos Energy Enterprises Inc., 3920 Park Avenue, Edison,
New Jersey 08820, which must be received between January 17, 2023
and February 16, 2023;
provided
that if the date of the 2023 annual meeting is more than 30 days
before or after May 17, 2023, notice must be received no earlier
than 120 days prior to such annual meeting and no later than the
90th day prior to the annual meeting date or the 10th day following
the day on which public announcement of the 2023 annual meeting
date is first made by the Company. You are also advised to review
our bylaws, which contain additional requirements about advance
notice of stockholder proposals and director
nominations.
What is the quorum requirement?
A quorum of stockholders is necessary to hold a valid meeting. The
presence, in person or represented by proxy, at the Special Meeting
of the holders of shares of outstanding common stock representing a
majority of the voting power of all outstanding shares of common
stock entitled to vote at the Special Meeting will be required to
establish a quorum at the Special Meeting. Abstentions and “broker
non-votes” will be treated as shares present and entitled to vote
for quorum purposes. Your shares will be counted towards the quorum
only if you submit a valid proxy or vote at the Special Meeting. If
there is no quorum, either the chair of the Special Meeting or a
majority in voting power of the stockholders entitled to vote at
the Special Meeting, present online or represented by proxy, may
adjourn the Special Meeting to another time or place.
How can I find out the results of the voting at the Special
Meeting?
Voting results will be announced by the filing of a Current Report
on Form 8-K within four business days after the Special
Meeting.
Who can help answer my questions?
If you have questions about this Proxy Statement or if you need
additional copies of the proxy materials, you should contact our
Investor Relations department at 765-201-0591 or ir@eose.com. To
obtain timely delivery, our stockholders must request the materials
on or before , 2022
to facilitate timely delivery.
Who will solicit and pay the cost of soliciting
proxies?
Eos will pay the cost of soliciting proxies for the special
meeting. Eos will reimburse banks, brokers and other custodians,
nominees and fiduciaries representing beneficial owners of ordinary
shares for their expenses in forwarding soliciting materials to
beneficial owners of ordinary shares and in obtaining voting
instructions from those owners. Our directors, officers and
employees may also solicit proxies by telephone, mail, on the
Internet or at the Special Meeting. They will not be paid any
additional amounts for soliciting proxies. In addition, we have
retained Morrow Sodali to act as a proxy solicitor in conjunction
with the Special Meeting. We have agreed to pay that firm
$ , and reasonable out-of-pocket expenses,
for proxy solicitation services.
How do I attend the Special Meeting?
The Board of Directors has determined to hold the Special Meeting
virtually to facilitate stockholder attendance and participation by
stockholders from all locations at no cost. We believe this is the
right choice for the Company at this time, as it enables engagement
with our stockholders, regardless of size, resources, or physical
location while safeguarding the health of our stockholders, Board
and management. We are committed to ensuring that stockholders will
be afforded the same rights and opportunities to participate as
they would at an in-person meeting.
You may attend the Special Meeting live via the Internet at
www.virtualshareholdermeeting.com/EOSE2022. Stockholders will need
the 16-digit control number provided on their Proxy Card, voting
instruction form or notice. We suggest you log in at least 15
minutes before the start of the meeting.
Can I ask questions at the Special Meeting?
Stockholders as of our record date will have an opportunity to
submit questions live via the Internet during the
meeting.
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How to Participate in the Special Meeting |
Online:
1. Visit www.virtualshareholdermeeting.com/EOSE2022; and
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2. Enter the 16
digit control number included
on your Proxy Card or on the instructions
that accompanied your proxy materials. |
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You may begin to log into the meeting platform beginning at 9:45 a.m.
Eastern Time on , 2022.
The meeting will begin promptly at 10:00
a.m. Eastern Time. |
Appendix A
Standby Equity Purchase Agreement
dated April 28, 2022,
by and between the Company
and YA II PN, Ltd.
THIS STANDBY EQUITY PURCHASE AGREEMENT
(this “Agreement”)
dated as of April 28, 2022 is made by and between
YA II PN, LTD.,
a Cayman Islands exempt limited partnership (the
“Investor”),
and
EOS ENERGY ENTERPRISES, INC.,
a company incorporated under the laws of the State of Delaware (the
“Company”).
WHEREAS,
the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall have the right to
issue and sell to the Investor, from time to time as provided
herein, and the Investor shall purchase from the Company, up to
$200 million of the Company’s shares of common stock, par value
$0.0001 per share (the “Common
Shares”);
and
WHEREAS,
the Common Shares are listed for trading on the Nasdaq Capital
Market under the symbol “EOSE;” and
WHEREAS,
the offer and sale of the Common Shares issuable hereunder will be
registered on the Company’s registration statement on Form S-3
(file No. 333-263298) under Section 5 under the Securities Act of
1933, as amended, and the rules and regulations promulgated
thereunder (the “Securities
Act”).
NOW,
THEREFORE,
the parties hereto agree as follows:
Article I.Certain
Definitions
Section 1.01“Additional
Shares”
shall have the meaning set forth in Section
2.01(d)(ii).
Section 1.02“Adjusted
Advance Amount”
shall have the meaning set forth in Section
2.01(d)(i).
Section 1.03“Advance
Date”
shall mean the 1st
Trading Day after expiration of the applicable Pricing Period for
each Advance.
Section 1.04“Advance
Notice”
shall mean a written notice in the form of
Exhibit A
attached hereto to the Investor executed by an officer of the
Company and setting forth the amount of an Advance that the Company
desires to issue and sell to the Investor.
Section 1.05“Advance
Notice Date”
shall mean each date the Company delivers (in accordance with
Section 2.01(b) of this Agreement) to the Investor an Advance
Notice, subject to the terms of this Agreement.
Section 1.06“Advances”
shall mean any issuance and sale from the Company to the Investor
pursuant to Article II hereof.
Section 1.07“Affiliate”
shall have the meaning set forth in Section 3.07.
Section 1.08“Agreement”
shall have the meaning set forth in the preamble of this
Agreement.
Section 1.09“Applicable
Laws”
shall mean all applicable laws, statutes, rules, regulations,
orders, executive orders, directives, policies, guidelines and
codes having the force of law, whether local, national, or
international, as amended from time to time, including without
limitation (i) all applicable laws that relate to money laundering,
terrorist financing, financial record keeping and reporting, (ii)
all applicable laws that relate to anti-bribery, anti-
corruption, books and records and internal controls, including the
United States Foreign Corrupt Practices Act of 1977, and (iii) any
Sanctions laws.
Section 1.10“Base
Prospectus”
shall mean the Company’s prospectus dated April 25, 2022
accompanying the Registration Statement.
Section 1.11“Basket”
shall have the meaning set forth in Section 5.04.
Section 1.12“Black
Out Period”
shall have the meaning set forth in Section 6.02
Section 1.13“Closing”
shall have meaning set forth in Section 2.02.
Section 1.14“Commitment
Amount”
shall mean $200,000,000 of Common Shares,
provided that,
the Company shall not effect any sales under this Agreement and the
Investor shall not have the obligation to purchase Common Shares
under this Agreement to the extent (but only to the extent) that
after giving effect to such purchase and sale the aggregate number
of Common Shares issued under this Agreement would exceed 19.99% of
the outstanding Common Shares as of the date of this Agreement (the
“Exchange
Cap”);
provided further that,
the Exchange Cap will not apply (a) if the Company’s stockholders
have approved issuances in excess of the Exchange Cap in accordance
with the rules of the Principal Market or (b) as to any Advance, if
the Purchase Price of Shares in respect of such Advance equals or
exceeds $2.15 per share (which represents the lower of
(i) the Nasdaq Official Closing Price on the Trading Day
immediately preceding the date of this Agreement; or (ii) the
average Nasdaq Official Closing Price for the five Trading Days
immediately preceding the date of this Agreement).
Section 1.01“Commitment
Fee Shares”
shall have the meaning set forth in Section 13.04.
Section 1.02“Commitment
Period”
shall mean the period commencing on the date hereof and expiring
upon the date of termination of this Agreement in accordance with
Section 11.02.
Section 1.03“Common
Shares”
shall have the meaning set forth in the recitals of this
Agreement.
Section 1.04“Company”
shall have the meaning set forth in the preamble of this
Agreement.
Section 1.05“Company
Indemnitees”
shall have the meaning set forth in Section 5.02.
Section 1.06“Condition
Satisfaction Date”
shall have the meaning set forth in Section 7.01.
Section 1.07“Environmental
Laws”
shall have the meaning set forth in Section 4.08.
Section 1.08“Exchange
Act”
shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Section 1.09“Hazardous
Materials”
shall have the meaning set forth in Section 4.08.
Section 1.10“Indemnified
Liabilities”
shall have the meaning set forth in Section 5.01.
Section 1.11“Initial
Registration Statement”
shall have the meaning set forth in Section 6.01.
Section 1.12“Investor”
shall have the meaning set forth in the preamble of this
Agreement.
Section 1.13“Investor
Indemnitees”
shall have the meaning set forth in Section 5.01.
Section 1.14“Market
Price”
shall mean the average of the VWAPs during each Trading Day of the
relevant Pricing Period.
Section 1.15“Material
Adverse Effect”
shall mean any event, occurrence or condition that has had or would
reasonably be expected to have (i) a material adverse effect on the
legality, validity or enforceability of this Agreement or the
transactions contemplated herein, (ii) a material adverse effect on
the results of operations, assets, business or condition (financial
or otherwise) of the Company and its Subsidiaries, taken as a
whole, or (iii) a material adverse effect on the Company’s ability
to perform in any material respect on a timely basis its
obligations under this Agreement.
Section 1.16“Material
Outside Event”
shall have the meaning set forth in Section 6.08.
Section 1.17“Maximum
Advance Amount”
in respect of each Advance Notice means $20,000,000.
Section 1.18“Minimum
Acceptable Price”
or “MAP”
shall mean the minimum price notified by the Company to the
Investor in each Advance Notice, if applicable.
Section 1.19“Nasdaq
Official Closing Price”
means the closing price of a Common Share as reported on the
“Historical NOCP” section of the web site Nasdaq.com for the ticker
symbol “EOSE.”
Section 1.20“OFAC”
shall mean the U.S. Department of Treasury’s Office of Foreign
Asset Control.
Section 1.21“Ownership
Limitation”
shall have the meaning set forth in Section 2.01I(i).
Section 1.22“Person”
shall mean an individual, a corporation, a partnership, a limited
liability company, a trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
Section 1.23“Plan
of Distribution”
shall mean the section of a Registration Statement disclosing the
plan of distribution of the Shares.
Section 1.24“Pricing
Period”
shall mean the three (3) consecutive Trading Days commencing on the
Advance Notice Date.
Section 1.25“Principal
Market”
shall mean the Nasdaq Capital Market.
Section 1.26“Promissory
Note”
shall have the meaning set forth in Section 2.05(b).
Section 1.27“Prospectus”
means any prospectus (including, without limitation, all amendments
and supplements thereto) used in connection with a Registration
Statement.
Section 1.28“Prospectus
Supplement”
shall mean any prospectus supplement to a Prospectus filed with the
SEC pursuant to Rule 424(b) under the Securities Act, including,
without limitation, any Prospectus Supplement to be filed in
accordance with Section 6.01 hereof.
Section 1.29“Purchase
Price”
shall mean the price per Share obtained by multiplying the Market
Price by 97% in respect of any Shares purchased
hereunder.
Section 1.30[Reserved]
Section 1.31“Registration
Limitation”
shall have the meaning set forth in Section
2.01(c)(ii).
Section 1.32“Registration
Statement”
shall mean the Initial Registration Statement or another
registration statement on a form promulgated by the SEC for which
the Company then qualifies for the registration of the offer and
sale of the Shares to be offered and sold by the Company to the
Investor and the resale of such Shares by the Investor, as the same
may be amended and supplemented from time to time and including any
information deemed to be a part thereof pursuant to Rule 430B under
the Securities Act and any successor registration statement filed
by
the Company with the SEC under the Securities Act on a form
promulgated by the SEC for which the Company then qualifies and
which form shall be available for the registration of the
transactions contemplated hereunder.
Section 1.33“Regulation
D”
shall mean the provisions of Regulation D promulgated under the
Securities Act.
Section 1.34“Request”
shall have the meaning set forth in Section 2.05(a).
Section 1.35“Sanctions”
means any sanctions administered or enforced by OFAC, the U.S.
State Department, the United Nations Security Council, the European
Union, Her Majesty’s Treasury, or other relevant sanctions
authority.
Section 1.36“Sanctions
Programs”
means any OFAC economic sanction program (including, without
limitation, programs related to Crimea, Cuba, Iran, North Korea,
Sudan and Syria).
Section 1.37“SEC”
shall mean the U.S. Securities and Exchange
Commission.
Section 1.38“SEC
Documents”
shall have the meaning set forth in Section 4.05.
Section 1.39“Securities
Act”
shall have the meaning set forth in the recitals of this
Agreement.
Section 1.40“Settlement
Document”
shall have the meaning set forth in Section 2.02(a).
Section 1.41“Shares”
shall mean the Common Shares to be issued from time to time
hereunder pursuant to an Advance.
Section 1.42“Subsidiaries”
shall have the meaning set forth in Section 4.01.
Section 1.43“Trading
Day”
shall mean any day during which the Principal Market shall be open
for business.
Section 1.44“Transaction
Documents”
shall have the meaning set forth in Section 4.02.
Section 1.45“VWAP”
means, for any Trading Day, the daily volume weighted average price
of the Common Shares for such Trading Day on the Principal Market
during regular trading hours as reported by Bloomberg
L.P.
Article II.Advances
Section 2.01 Advances;
Mechanics.
Subject to the terms and conditions of this Agreement (including,
without limitation, the provisions of Article VII hereof), the
Company, at its sole and exclusive option, may issue and sell to
the Investor, and the Investor shall purchase from the Company,
Common Shares on the following terms:
(a)Advance
Notice.
At any time during the Commitment Period the Company may require
the Investor to purchase Shares by delivering an Advance Notice to
the Investor, subject to the conditions set forth in Section 7.01,
and in accordance with the following provisions:
(i)The
Company shall, in its sole discretion, select the amount of the
Advance, not to exceed the Maximum Advance Amount, it desires to
issue and sell to the Investor in each Advance Notice and the time
it desires to deliver each Advance Notice.
(ii)There
shall be no mandatory minimum Advances and no non-usages fee for
not utilizing the Commitment Amount or any part
thereof.
(b)Date
of Delivery of Advance Notice.
Advance Notices shall be delivered in accordance with the
instructions set forth on the bottom of
Exhibit A.
An Advance Notice shall be deemed delivered on (i) the day it is
received by the Investor if such notice is received by email on or
before 8:30 a.m. Eastern Time in
accordance with the instructions set forth on the bottom of
Exhibit A,
or (ii) the immediately succeeding day if it is received by email
after 8:30 a.m. Eastern Time, in each case in accordance with the
instructions set forth on the bottom of
Exhibit A.
(c)Advance
Limitations.
Regardless of the amount of an Advance requested by the Company in
the Advance Notice, the final number of Shares to be issued and
sold pursuant to an Advance Notice shall be reduced in accordance
with each of the following limitations:
(i)Ownership
Limitation; Commitment Amount.
At the request of the Company, the Investor will inform the Company
of the amount of shares the Investor currently beneficially owns.
In no event shall the number of Common Shares issuable to the
Investor pursuant to an Advance cause the aggregate number of
Common Shares beneficially owned (as calculated pursuant to Section
13(d) of the Exchange Act) by the Investor and its Affiliates as a
result of previous issuances and sales of Common Shares to Investor
under this Agreement to exceed 9.99% of the then outstanding Common
Shares (the “Ownership
Limitation”).
In connection with each Advance Notice delivered by the Company,
any portion of the Advance that would (i) cause the Investor to
exceed the Ownership Limitation or (ii) cause the aggregate number
of Shares issued and sold to the Investor hereunder to exceed the
Commitment Amount shall automatically be withdrawn with no further
action required by the Company, and such Advance Notice shall be
deemed automatically modified to reduce the amount of the Advance
requested by an amount equal to such withdrawn portion; provided
that in the event of any such automatic withdrawal and automatic
modification, the Investor will promptly notify the Company of such
event.
(ii)Registration
and Exchange Limitation.
In no event shall an Advance exceed the amount registered under the
Registration Statement then in effect (the “Registration
Limitation”)
or the Exchange Cap, to the extent applicable. In connection with
each Advance Notice, any portion of an Advance that would exceed
the Registration Limitation or the Exchange Cap shall automatically
be withdrawn with no further action required by the Company and
such Advance Notice shall be deemed automatically modified to
reduce the aggregate amount of the requested Advance by an amount
equal to such withdrawn portion in respect of each Advance Notice;
provided that in the event of any such automatic withdrawal and
automatic modification, Investor will promptly notify the Company
of such event.
(d)Minimum
Acceptable Price.
(i)With
respect to each Advance Notice, the Company may notify the Investor
of the MAP with respect to such Advance by indicating a MAP on such
Advance Notice. If no MAP is specified in an Advance Notice, then
no MAP shall be in effect in connection with such Advance. Each
Trading Day during a Pricing Period for which (A) with respect to
each Advance Notice with a MAP, the VWAP of the Common Shares is
below the MAP in effect with respect to such Advance Notice, or (B)
there is no VWAP (each such day, an “Excluded
Day”),
shall result in an automatic reduction to the amount of the Advance
set forth in such Advance Notice by one-third (the resulting amount
of each Advance being the “Adjusted
Advance Amount”),
and each Excluded Day shall be excluded from the Pricing Period for
purposes of determining the Market Price.
(ii)The
total Shares in respect of each Advance (after reductions have been
made to arrive at the Adjusted Advance Amount) shall be
automatically increased by such number of Common Shares (the
“Additional
Shares”)
equal to the number of Common Shares sold by the Investor on such
Excluded Day, if any, and the price paid per share for each
Additional Share shall be equal to the MAP in effect with respect
to such Advance Notice
(without any further discount), provided that this increase shall
not cause the total Advance to exceed the amount set forth in the
original Advance Notice or any limitations set forth in Section
2.01(c).
(e)Notwithstanding
any other provision in this Agreement, the Company and the Investor
acknowledge and agree that upon the Investor’s receipt of a valid
Advance Notice the parties shall be deemed to have entered into an
unconditional contract binding on both parties for the purchase and
sale of Shares pursuant to such Advance Notice in accordance with
the terms of this Agreement and (i) subject to Applicable Law and
(ii) subject to Section 3.08 (Trading Activities), the
Investor may sell Common Shares during the Pricing
Period.
Section 2.02 Closings.
The closing of each Advance and each sale and purchase of Shares
related to each Advance (each, a “Closing”)
shall take place as soon as practicable on or after each Advance
Date in accordance with the procedures set forth below. The parties
acknowledge that the Purchase Price is not known at the time the
Advance Notice is delivered (at which time the Investor is
irrevocably bound) but shall be determined on each Closing based on
the daily prices of the Common Shares that are the inputs to the
determination of the Purchase Price as set forth further below. In
connection with each Closing, the Company and the Investor shall
fulfill each of its obligations as set forth below:
(a)On
each Advance Date, the Investor shall deliver to the Company a
written document, in the form attached hereto as
Exhibit B
(each a “Settlement
Document”),
setting forth the final number of Shares to be purchased by the
Investor (taking into account any adjustments pursuant to
Section 2.01),
the Market Price, the Purchase Price, the aggregate proceeds to be
paid by the Investor to the Company, and a report by Bloomberg,
L.P. indicating the VWAP for each of the Trading Days during the
Pricing Period (or, if not reported on Bloomberg, L.P., another
reporting service reasonably agreed to by the parties), in each
case in accordance with the terms and conditions of this
Agreement.
(b)Promptly
after receipt of the Settlement Document with respect to each
Advance (and, in any event, not later than one Trading Day after
such receipt), the Company will, or will cause its transfer agent
to, electronically transfer such number of Shares to be purchased
by the Investor (as set forth in the Settlement Document) by
crediting the Investor’s account or its designee’s account at the
Depository Trust Company through its Deposit Withdrawal at
Custodian System or by such other means of delivery as may be
mutually agreed upon by the parties hereto, and transmit
notification to the Investor that such share transfer has been
requested. Promptly upon receipt of such notification, the Investor
shall pay to the Company the aggregate purchase price of the Shares
(as set forth in the Settlement Document) in cash in immediately
available funds to an account designated by the Company in writing
and transmit notification to the Company that such funds transfer
has been requested. No fractional shares shall be issued, and any
fractional amounts shall be rounded to the next higher whole number
of shares. To facilitate the transfer of the Common Shares by the
Investor, the Common Shares will not bear any restrictive legends
so long as there is an effective Registration Statement covering
such Common Shares (it being understood and agreed by the Investor
that notwithstanding the lack of restrictive legends, the Investor
may only sell such Common Shares in compliance with the
requirements of the Securities Act (including any applicable
prospectus delivery requirements) or pursuant to an available
exemption).
(c)On
or prior to the Advance Date, each of the Company and the Investor
shall deliver to the other all documents, instruments and writings
expressly required to be delivered by either of them pursuant to
this Agreement in order to implement and effect the transactions
contemplated herein.
(d)Notwithstanding
anything to the contrary in this Agreement, if on any day during
the Pricing Period (i) the Company notifies Investor that a
Material Outside Event has occurred, or (ii) the Company notifies
the Investor of a Black Out Period, the parties agree that the
pending Advance shall end and the final number of Shares to be
purchased by the Investor at the Closing for such Advance shall be
equal to the number of Common Shares sold by the Investor during
the applicable Pricing Period prior to the notification from the
Company of a Material Outside Event or Black Out
Period.
Section 2.03 Hardship.
(a)In
the event the Investor sells Common Shares after receipt of an
Advance Notice and the Company fails to perform its obligations as
mandated in Section 2.02, the Company agrees that in addition to
and in no way limiting the rights and obligations set forth in
Article V hereto and in addition to any other remedy to which the
Investor is entitled at law or in equity, including, without
limitation, specific performance, it will hold the Investor
harmless against any loss, claim, damage, or expense (including
reasonable legal fees and expenses), as incurred, arising out of or
in connection with such default by the Company and acknowledges
that irreparable damage may occur in the event of any such default.
It is accordingly agreed that the Investor shall be entitled to an
injunction or injunctions to prevent such breaches of this
Agreement and to specifically enforce (subject to the Securities
Act and other rules of the Principal Market), without the posting
of a bond or other security, the terms and provisions of this
Agreement.
(b)In
the event the Company provides an Advance Notice and the Investor
fails to perform its obligations as mandated in Section 2.02, the
Investor agrees that in addition to and in no way limiting the
rights and obligations set forth in Article V hereto and in
addition to any other remedy to which the Company is entitled at
law or in equity, including, without limitation, specific
performance, it will hold the Company harmless against any loss,
claim, damage, or expense (including reasonable legal fees and
expenses), as incurred, arising out of or in connection with such
default by the Investor and acknowledges that irreparable damage
may occur in the event of any such default. It is accordingly
agreed that the Company shall be entitled to an injunction or
injunctions to prevent such breaches of this Agreement and to
specifically enforce (subject to the Securities Act and other rules
of the Principal Market), without the posting of a bond or other
security, the terms and provisions of this Agreement.
Section 2.04 Completion
of Resale Pursuant to the Registration Statement.
The Company will be under no further obligation to maintain the
effectiveness of the Registration Statement after the earlier to
occur of (a) the date on which the Investor has purchased the full
Commitment Amount and has completed the subsequent resale of the
full Commitment Amount pursuant to the Registration Statement
(Investor agrees to notify the Company when all subsequent resales
are completed), (b) the 180th day following the date on which the
Investor has purchased the full Commitment Amount, or (c) the 180th
day following the termination of this Agreement in accordance with
its terms.
Section 2.05 Pre-Advance
Loans.
Subject to the mutual consent of the parties, from time to time,
the Company may request, and the Investor shall provide,
pre-advance loans from the Investor in the aggregate principal
amount not to exceed $50,000,000 per loan, pursuant to a promissory
note in the form attached hereto as Exhibit C, on terms and
conditions to be agreed by the parties.
Article III.Representations
and Warranties of Investor
Investor hereby represents and warrants to, and agrees with, the
Company that the following are true and correct as of the date
hereof and as of each Advance Notice Date and each Advance
Date:
Section 3.01 Organization
and Authorization.
The Investor is duly organized, validly existing and in good
standing under the laws of the Cayman Islands and has all requisite
power and authority to execute, deliver and perform this Agreement,
including all transactions contemplated hereby. The decision to
invest and the execution and delivery of this Agreement by the
Investor, the performance by the Investor of its obligations
hereunder and the consummation by the Investor of the transactions
contemplated hereby have been duly authorized and require no other
proceedings on the part of the Investor. The undersigned has the
right, power and authority to execute and deliver this Agreement
and all other instruments on behalf of the Investor or its
shareholders. This Agreement has been duly executed and delivered
by the Investor and, assuming the execution and delivery hereof and
acceptance thereof by the Company, will constitute the legal, valid
and binding obligations of the Investor, enforceable against the
Investor in accordance with its terms.
Section 3.02 Evaluation
of Risks.
The Investor has such knowledge and experience in financial, tax
and business matters as to be capable of evaluating the merits and
risks of, and bearing the economic risks entailed by, an investment
in the Common Shares of the Company and of protecting its interests
in connection with the transactions contemplated hereby. The
Investor acknowledges and agrees that its investment in the Company
involves a high degree of risk, and that the Investor may lose all
or a part of its investment.
Section 3.03 No
Legal, Investment or Tax Advice from the Company.
The Investor acknowledges that it had the opportunity to review
this Agreement and the transactions contemplated by this Agreement
with its own legal counsel and investment and tax advisors. The
Investor is relying solely on such counsel and advisors and not on
any statements or representations of the Company or any of the
Company’s representatives or agents for legal, tax, investment or
other advice with respect to the Investor’s acquisition of Common
Shares hereunder, the transactions contemplated by this Agreement
or the laws of any jurisdiction, and the Investor acknowledges that
the Investor may lose all or a part of its investment.
Section 3.04 Investment
Purpose.
The Investor is acquiring the Common Shares for its own account,
for investment purposes and not with a view towards, or for resale
in connection with, the public sale or distribution thereof, in
violation of the Securities Act or any applicable state securities
laws; provided, however, that by making the representations
herein, the Investor does not agree, or make any representation or
warranty, to hold any of the Shares for any minimum or other
specific term and reserves the right to dispose of the Shares at
any time in accordance with, or pursuant to, a registration
statement filed pursuant to this Agreement or an applicable
exemption under the Securities Act. The Investor does not presently
have any agreement or understanding, directly or indirectly, with
any Person to sell or distribute any of the Shares. The Investor is
acquiring the Shares hereunder in the ordinary course of its
business. The Investor acknowledges that it will be disclosed as an
“underwriter” and a “selling stockholder” in each Registration
Statement and in any prospectus contained therein to the extent
required by applicable law and to the extent the prospectus is
related to the resale of the Shares. In addition, the Investor is
acquiring the Commitment Fee Shares for its own account and not
with a view towards the public sale or distribution thereof. The
Investor understands that the Commitment Fee Shares have not been
registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if
an exemption from registration is available.
Section 3.05 Accredited
Investor.
The Investor is an “Accredited
Investor”
as that term is defined in Rule 501(a)(3) of Regulation
D.
Section 3.06 Information.
The Investor and its advisors (and its counsel), if any, have been
furnished with all materials relating to the business, finances and
operations of the Company and information the Investor deemed
material to making an informed investment decision. The Investor
and its advisors (and its counsel), if any, have been afforded the
opportunity to ask questions of the Company and its management and
have received answers to such questions. Neither such inquiries nor
any other due diligence investigations conducted by such Investor
or its advisors (and its counsel), if any, or its representatives
shall modify, amend or affect the Investor’s right to rely on the
Company’s representations and warranties contained in this
Agreement. The Investor acknowledges and agrees that the Company
has not made to the Investor, and the Investor acknowledges and
agrees it has not relied upon, any representations and warranties
of the Company, its employees or any third party other than the
representations and warranties of the Company contained in this
Agreement. The Investor understands that its investment involves a
high degree of risk. The Investor has sought such accounting, legal
and tax advice, as it has considered necessary to make an informed
investment decision with respect to the transactions contemplated
hereby.
Section 3.07 Not
an Affiliate.
The Investor is not an officer, director or a person that directly,
or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with the Company or any
“affiliate”
of the Company (as that term is defined in Rule 405 promulgated
under the Securities Act).
Section 3.08 Trading
Activities.
The Investor’s trading activities with respect to the Common Shares
shall be in compliance with all applicable federal and state
securities laws, rules and regulations and the rules and
regulations of the Principal Market. Neither the Investor nor its
affiliates has any open short position in the Common Shares, nor
has the Investor entered into any hedging transaction that
establishes a net short position with respect to the
Common Shares, and the Investor agrees that it shall not, and that
it will cause its affiliates not to, engage in any short sales or
hedging transactions with respect to the Common Shares;
provided
that the Company acknowledges and agrees that upon receipt of an
Advance Notice the Investor has the right to sell (a) the Shares to
be issued to the Investor pursuant to the Advance Notice prior to
receiving such Shares, or (b) other Common Shares sold by the
Company to Investor pursuant to this Agreement and which the
Company has continuously held as a long position.
Section 3.09 Free
Writing Prospectus.
The Investor shall not take any action that would result in the
Investor or the Company being required to file with the SEC
pursuant to Rule 433(d) under the Securities Act a free writing
prospectus.
Article IV.Representations
and Warranties of the Company
Except as set forth in the SEC Documents, or in the Disclosure
Schedules, which Disclosure Schedules shall be deemed a part hereof
and shall qualify any representation or warranty otherwise made
herein to the extent of the disclosure contained in the
corresponding section of the Disclosure Schedules or in another
Section of the Disclosure Schedules, to the extent that it is
reasonably apparent on the face of such disclosure that such
disclosure is applicable to such Section, the Company represents
and warrants to the Investor that, as of the date hereof, each
Advance Notice Date and each Advance Date (other than
representations and warranties which address matters only as of a
certain date, which shall be true and correct as written as of such
certain date), that:
Section 4.01 Organization
and Qualification.
Each of the Company and its Subsidiaries (as defined below) is an
entity duly organized and validly existing under the laws of its
state of organization or incorporation, and has the requisite power
and authority to own its properties and to carry on its business as
now being conducted. Each of the Company and its Subsidiaries is
duly qualified to do business and is in good standing (to the
extent applicable) in every jurisdiction in which the nature of the
business conducted by it makes such qualification necessary, except
to the extent that the failure to be so qualified or be in good
standing would not have a Material Adverse Effect.
“Subsidiaries”
means any Person (as defined below) in which the Company, directly
or indirectly, (x) owns a majority of the outstanding capital stock
or holds a majority equity or similar interest of such Person or
(y) controls or operates all or substantially all of the business,
operations or administration of such Person, and each of the
foregoing, is individually referred to herein as a
“Subsidiary.”
Section 4.02 Authorization,
Enforcement, Compliance with Other Instruments.
The Company has the requisite corporate power and authority to
enter into and perform its obligations under this Agreement and the
other Transaction Documents and to issue the Shares in accordance
with the terms hereof and thereof. The execution and delivery by
the Company of this Agreement and the other Transaction Documents,
and the consummation by the Company of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance of the Common Shares) have been or (with respect to
consummation) will be duly authorized by the Company’s board of
directors and no further consent or authorization will be required
by the Company, its board of directors or its shareholders. This
Agreement and the other Transaction Documents to which it is a
party have been (or, when executed and delivered, will be) duly
executed and delivered by the Company and, assuming the execution
and delivery thereof and acceptance by the Investor, constitute
(or, when duly executed and delivered, will be) the legal, valid
and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as such
enforceability may be limited by general principles of equity or
applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or other laws relating to, or affecting generally, the
enforcement of applicable creditors’ rights and remedies and except
as rights to indemnification and to contribution may be limited by
federal or state securities law. “Transaction
Documents”
means, collectively, this Agreement and each of the other
agreements and instruments entered into or delivered by any of the
parties hereto in connection with the transactions contemplated
hereby and thereby, as may be amended from time to
time.
Section 4.03 Authorization
of the Shares.
The Shares to be issued under this Agreement have been, or with
respect to Shares to be purchased by the Investor pursuant to an
Advance Notice, will be, when issued and delivered pursuant to the
terms approved by the board of directors of the Company or a duly
authorized committee thereof, or a duly authorized executive
committee, against payment therefor as provided herein, duly and
validly authorized and issued and fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest
or other
claim, including any statutory or contractual preemptive rights,
resale rights, rights of first refusal or other similar rights, and
will be registered pursuant to Section 12 of the Exchange Act. The
Shares, when issued, will conform to the description thereof set
forth in or incorporated into the Prospectus.
Section 4.04 No
Conflict.
The execution, delivery and performance of the Transaction
Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Common Shares) will not (i) result
in a violation of the articles of incorporation or other
organizational documents of the Company or its Subsidiaries (with
respect to consummation, as the same may be amended prior to the
date on which any of the transactions contemplated hereby are
consummated), (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a
default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or its Subsidiaries is
a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state
securities laws and regulations) applicable to the Company or its
Subsidiaries or by which any property or asset of the Company or
its Subsidiaries is bound or affected except, in the case of clause
(ii) or (iii) above, to the extent such violations that would not
reasonably be expected to have a Material Adverse
Effect.
Section 4.05 SEC
Documents.
The Company has filed all reports, schedules, forms, statements and
other documents required to be filed by it with the SEC pursuant to
the Exchange Act for the two years preceding the date hereof (or
such shorter period as the Company was required by law or
regulation to file such material) (all of the foregoing filed
within two years preceding the date hereof or amended after the
date hereof, or filed after the date hereof, and all exhibits
included therein and financial statements and schedules thereto and
documents incorporated by reference therein, and all registration
statements filed by the Company under the Securities Act, being
hereinafter referred to as the “SEC
Documents”).
The Company has made available to the Investor through the SEC’s
website at http://www.sec.gov, true and complete copies of the SEC
Documents.
Section 4.06 Financial
Statements.
The consolidated financial statements of the Company included or
incorporated by reference in SEC Documents, together with the
related notes and schedules, present fairly, in all material
respects, the consolidated financial position of the Company and
the Subsidiaries as of the dates indicated and the consolidated
results of operations, cash flows and changes in stockholders’
equity of the Company for the periods specified and have been
prepared in compliance with the requirements of the Securities Act
and Exchange Act and in conformity with generally accepted
accounting principles in the United States (“GAAP”)
applied on a consistent basis (except for (i) such adjustments to
accounting standards and practices as are noted therein, (ii) in
the case of unaudited interim financial statements, to the extent
such financial statements may not include footnotes required by
GAAP or may be condensed or summary statements and (iii) such
adjustments which will not be material, either individually or in
the aggregate) during the periods involved; the other financial and
statistical data with respect to the Company and the Subsidiaries
(as defined below) contained or incorporated by reference in the
SEC Documents are accurately and fairly presented and prepared on a
basis consistent with the financial statements and books and
records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or
incorporated by reference in the SEC Documents that are not
included or incorporated by reference as required; the Company and
the Subsidiaries (as defined below) do not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations), not described in the SEC Documents
(excluding the exhibits thereto); and all disclosures contained or
incorporated by reference in the SEC Documents regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the SEC) comply in all material respects with
Regulation G of the Exchange Act and Item 10 of Regulation S-K
under the Securities Act, to the extent applicable. The interactive
data in eXtensible Business Reporting Language included or
incorporated by reference in the SEC Documents fairly presents the
information called for in all material respects and has been
prepared in accordance with the SEC’s rules and guidelines
applicable thereto.
Section 4.07 Registration
Statement and Prospectus.
The Company and the transactions contemplated by this Agreement
meet the requirements for and comply with the conditions for the
use of Form S-3 under the Securities Act. Each of the Registration
Statement and any post-effective amendment thereto has been
declared effective by the SEC under the Securities Act. No stop
order suspending the effectiveness of the Registration Statement,
or any post-effective amendment thereto has been issued under the
Securities Act, no order preventing or suspending the use
of
any base prospectus, the Prospectus Supplement, the Prospectus has
been issued and no proceedings for any of those purposes or
pursuant to Section 8A of the Securities Act have been instituted
or are pending or, to the knowledge of the Company, are threatened
by the SEC. Copies of each Registration Statement, any Prospectus,
and any such amendments or supplements and all documents
incorporated by reference therein that were filed with the SEC on
or prior to the date of this Agreement have been delivered, or are
available through EDGAR, to the Investor and its counsel. The
Company has not distributed and, prior to the later to occur of
each Settlement Date and completion of the distribution of the
Shares, will not distribute any offering material in connection
with the offering or sale of the Shares other than a Registration
Statement and the Prospectus.
Section 4.08 No
Misstatement or Omission.
Each Registration Statement, when it became or becomes effective,
and any Prospectus, on the date of such Prospectus or amendment or
supplement, conformed and will conform in all material respects
with the requirements of the Securities Act. At each Advance Date,
the Registration Statement, and the Prospectus, as of such date,
will conform in all material respects with the requirements of the
Securities Act. Each Registration Statement, when it became or
becomes effective, did not, and will not, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Each Prospectus did not, or will not,
include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
documents incorporated by reference in a Prospectus or any
Prospectus Supplement did not, and any further documents filed and
incorporated by reference therein will not, when filed with the
SEC, contain an untrue statement of a material fact or omit to
state a material fact required to be stated in such document or
necessary to make the statements in such document, in light of the
circumstances under which they were made, not misleading. The
foregoing shall not apply to statements in, or omissions from, any
such document made in reliance upon, and in conformity with,
information furnished to the Company by the Investor specifically
for use in the preparation thereof.
Section 4.09 Conformity
with Securities Act and Exchange Act.
Each Registration Statement, each Prospectus, or any amendment or
supplement thereto, and the documents incorporated by reference in
each Registration Statement, Prospectus or any amendment or
supplement thereto, when such documents were or are filed with the
SEC under the Securities Act or the Exchange Act or became or
become effective under the Securities Act, as the case may be,
conformed or will conform in all material respects with the
requirements of the Securities Act and the Exchange Act, as
applicable.
Section 4.10 Equity
Capitalization.
As of the date hereof, the authorized capital of the Company
consists of 200,000,000 shares of common stock, par value $0.0001
per share and 1,000,000 shares of preferred stock, par value
$0.0001 per share. As of the date hereof, the Company had
53,980,608 shares of common stock outstanding and no shares of
preferred stock outstanding. The Common Shares are registered
pursuant to Section 12(b) of the Exchange Act and is currently
listed on the Principal Market under the trading symbol “EOSE.” The
Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Shares under
the Exchange Act, delisting the Common Shares from the Principal
Market, nor has the Company received any notification that the SEC
or the Principal Market is contemplating terminating such
registration or listing. To the Company’s knowledge, it is in
compliance with all applicable listing requirements of the
Principal Market.
Section 4.11 Intellectual
Property Rights.
The Company and its Subsidiaries own or possess adequate rights or
licenses to use all material trademarks, trade names, service
marks, service mark registrations, service names, patents, patent
rights, copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and rights, if any, necessary to
conduct their respective businesses as now conducted, except as
would not cause a Material Adverse Effect. The Company and its
Subsidiaries have not received written notice of any infringement
by the Company or its Subsidiaries of trademark, trade name rights,
patents, patent rights, copyrights, inventions, licenses, service
names, service marks, service mark registrations, or trade secrets,
except as would not cause a Material Adverse Effect. To the
knowledge of the Company, there is no claim, action or proceeding
being made or brought against, or to the Company’s knowledge, being
threatened against the Company or its Subsidiaries regarding
trademark, trade name, patents, patent rights, invention,
copyright, license, service names, service marks, service mark
registrations, trade secret or other infringement, except as would
not cause a Material Adverse Effect.
Section 4.12 Employee
Relations.
Neither the Company nor any of its Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company or any of its
Subsidiaries, is any such dispute threatened, in each case which is
reasonably likely to cause a Material Adverse Effect.
Section 4.13 Environmental
Laws.
The Company and its Subsidiaries (i) have not received written
notice alleging any failure to comply in all material respects with
all Environmental Laws (as defined below), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) have not received written notice alleging any
failure to comply with all terms and conditions of any such permit,
license or approval where, in each of the foregoing clauses (i),
(ii) and (iii), the failure to so comply would be reasonably
expected to have, individually or in the aggregate, a Material
Adverse Effect. The term “Environmental
Laws”
means all applicable federal, state and local laws relating to
pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata), including, without
limitation, laws relating to emissions, discharges, releases or
threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively,
“Hazardous
Materials”)
into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials, as well as all
authorizations, codes, decrees, demands or demand letters,
injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated
or approved thereunder.
Section 4.14 Title.
Except as would not cause a Material Adverse Effect, the Company
(or its Subsidiaries) has indefeasible fee simple or leasehold
title to its properties and material assets owned by it, free and
clear of any pledge, lien, security interest, encumbrance, claim or
equitable interest other than such as are not material to the
business of the Company. Any real property and facilities held
under lease by the Company and its Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company
and its Subsidiaries.
Section 4.15 Insurance.
The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be
prudent and customary in the businesses in which the Company and
its Subsidiaries are engaged. The Company has no reason to believe
that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse
Effect.
Section 4.16 Regulatory
Permits.
Except as would not cause a Material Adverse Effect, the Company
and its Subsidiaries possess all material certificates,
authorizations and permits issued by the appropriate federal, state
or foreign regulatory authorities necessary to own their respective
businesses, and neither the Company nor any such Subsidiary has
received any written notice of proceedings relating to the
revocation or modification of any such certificate, authorization
or permits.
Section 4.17 Internal
Accounting Controls.
The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
Section 4.18 Absence
of Litigation.
There is no action, suit, proceeding, inquiry or investigation
before or by any court, public board, government agency,
self-regulatory organization or body pending against or affecting
the Company, the Common Shares or any of the Company’s
Subsidiaries, wherein an unfavorable decision, ruling or finding
would have a Material Adverse Effect.
Section 4.19 Subsidiaries.
Except as disclosed in the SEC Documents, the Company does not
presently have any Subsidiaries.
Section 4.20 Tax
Status.
Except as would not have a Material Adverse Effect, each of the
Company and its Subsidiaries (i) has timely made or filed all
foreign, federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it
is subject, (ii) has timely paid all taxes and other governmental
assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations,
except those being contested in good faith and (iii) has set aside
on its books provision reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. Except as would not have a Material
Adverse Effect, Company has not received written notification any
unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company and
its Subsidiaries know of no basis for any such claim where failure
to pay would cause a Material Adverse Effect.
Section 4.21 Certain
Transactions.
Except as not required to be disclosed pursuant to Applicable Law
(including, for the avoidance of doubt, not yet required to be
disclosed at the relevant time), none of the officers or directors
of the Company is presently a party to any transaction with the
Company (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise
requiring payments to or from any officer or director, or to the
knowledge of the Company, any corporation, partnership, trust or
other entity in which any officer or director has a substantial
interest or is an officer, director, trustee or
partner.
Section 4.22 Rights
of First Refusal.
The Company is not obligated to offer the Common Shares offered
hereunder on a right of first refusal basis to any third parties
including, but not limited to, current or former shareholders of
the Company, underwriters, brokers, agents or other third
parties.
Section 4.23 Dilution.
The Company is aware and acknowledges that issuance of Common
Shares hereunder could cause dilution to existing shareholders and
could significantly increase the outstanding number of Common
Shares.
Section 4.24 Acknowledgment
Regarding Investor’s Purchase of Shares.
The Company acknowledges and agrees that the Investor is acting
solely in the capacity of an arm’s length investor with respect to
this Agreement and the transactions contemplated hereunder. The
Company further acknowledges that the Investor is not acting as a
financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to this Agreement and the transactions
contemplated hereunder and any advice given by the Investor or any
of its representatives or agents in connection with this Agreement
and the transactions contemplated hereunder is merely incidental to
the Investor’s purchase of the Shares hereunder. The Company is
aware and acknowledges that it shall not be able to request
Advances under this Agreement if the Registration Statement is not
effective or if any issuances of Common Shares pursuant to any
Advances would violate any rules of the Principal Market. The
Company acknowledged and agrees that it is capable of evaluating
and understanding, and understands and accepts, the terms, risks
and conditions of the transactions contemplated by this
Agreement.
Section 4.25 Relationship
of the Parties.
Neither the Company, nor any of its subsidiaries, affiliates, nor
any person acting on its or their behalf is a client or customer of
the Investor or any of its affiliates and neither the Investor nor
any of its affiliates has provided, or will provide, any services
to the Company or any of its affiliates, its subsidiaries, or any
person acting on its or their behalf. The Investor’s relationship
to Company is solely as investor as provided for in the Transaction
Documents.
Section 4.26 Forward-Looking
Statements.
No forward-looking statement (within the meaning of Section 27A of
the Securities Act and Section 21E of the Exchange Act) contained
in the Registration Statement or a Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
Section 4.27 Compliance
with Laws.
Except as would not have a Material Adverse Effect, the Company and
each of its Subsidiaries are in compliance with Applicable Laws;
the Company has not received a notice of non-
compliance by any director, officer or employee of the Company or
any Subsidiary, or any agent, affiliate or other person acting on
behalf of the Company or any Subsidiary has not complied with
Applicable Laws, and is not aware of any pending change or
contemplated change to any applicable law or regulation or
governmental position; in each case that would have a Material
Adverse Effect.
Section 4.28 Sanctions
Matters.
Neither the Company, nor any Subsidiary of the Company, nor, to the
Company’s knowledge, any director, officer, agent, employee or
affiliate of the Company or any Subsidiary of the Company, is a
Person that is, or is owned or controlled by a Person that
is:
(a)on
the list of Specially Designated Nationals and Blocked Persons
maintained by OFAC from time to time;
(b)the
subject of any Sanctions; or
(c)has
a place of business in, or is operating, organized, resident or
doing business in a country or territory that is, or whose
government is, the subject of Sanctions Programs (including without
limitation Crimea, Cuba, Iran, North Korea, Sudan and
Syria).
Section 4.29 General
Solicitation.
Neither the Company nor any other person acting on its behalf has
solicited offers to buy, or offer or sell, the Commitment Fee
Shares (as defined below) by any form of general solicitation or
general advertising (as those terms are used in Regulation D under
the Act), or in any manner involving a public offering within the
meaning of Section 4(a)(2) of the Act.
Article V.
Indemnification
The Investor and the Company represent to the other the following
with respect to itself:
Section 5.01 Indemnification
by the Company.
In consideration of the Investor’s execution and delivery of this
Agreement, and in addition to all of the Company’s other
obligations under this Agreement, the Company shall defend,
protect, indemnify and hold harmless the Investor and its
investment manager, Yorkville Advisors Global, LP, and each of
their respective officers, directors, partners, employees and
agents (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) and each
person who controls the Investor within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act
(collectively, the “Investor
Indemnitees”)
from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages,
and reasonable and documented expenses in connection therewith
(irrespective of whether any such Investor Indemnitee is a party to
the action for which indemnification hereunder is sought), and
including reasonable attorneys’ fees and disbursements (the
“Indemnified
Liabilities”),
incurred by the Investor Indemnitees or any of them as a result of,
or arising out of, or relating to (a) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares as
originally filed or in any amendment thereof, or in any related
prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided,
however,
that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or
on behalf of the Investor specifically for inclusion therein; (b)
any material misrepresentation or breach of any material
representation or material warranty made by the Company in this
Agreement or any other certificate, instrument or document
contemplated hereby or thereby; or (c) any material breach of any
material covenant, material agreement or material obligation of the
Company contained in this Agreement or any other certificate,
instrument or document contemplated hereby or thereby. To the
extent that the foregoing undertaking by the Company may be
unenforceable under Applicable Law, the Company shall make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities, which is permissible under Applicable
Law.
Section 5.02 Indemnification
by the Investor.
In consideration of the Company’s execution and delivery of this
Agreement, and in addition to all of the Investor’s other
obligations under this Agreement, the Investor shall defend,
protect, indemnify and hold harmless the Company and all of its
officers, directors, shareholders, employees and agents (including,
without limitation, those retained in connection with the
transactions contemplated by this Agreement) and each person who
controls the Investor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (collectively, the
“Company
Indemnitees”)
from and against any and all Indemnified Liabilities incurred by
the Company Indemnitees or any of them as a result of, or arising
out of, or relating to (a) any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement for the registration of the Shares as originally filed or
in any amendment thereof, or in any related prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading;
provided,
however,
that the Investor will only be liable for written information
relating to the Investor furnished to the Company by or on behalf
of the Investor specifically for inclusion in the documents
referred to in the foregoing indemnity, and will not be liable in
any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information
furnished to the Investor by or on behalf of the Company
specifically for inclusion therein; (b) any misrepresentation or
breach of any representation or warranty made by the Investor in
this Agreement or any instrument or document contemplated hereby or
thereby executed by the Investor; or (c) any breach of any
covenant, agreement or obligation of the Investor(s) contained in
this Agreement or any other certificate, instrument or document
contemplated hereby or thereby executed by the Investor. To the
extent that the foregoing undertaking by the Investor may be
unenforceable under Applicable Law, the Investor shall make the
maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities, which is permissible under Applicable
Law.
Section 5.03 Notice
of Claim.
Promptly after receipt by an Investor Indemnitee or Company
Indemnitee of notice of the commencement of any action or
proceeding (including any governmental action or proceeding)
involving an Indemnified Liability, such Investor Indemnitee or
Company Indemnitee, as applicable, shall, if a claim for an
Indemnified Liability in respect thereof is to be made against any
indemnifying party under this Article V, deliver to the
indemnifying party a written notice of the commencement thereof;
but the failure to so notify the indemnifying party will not
relieve it of liability under this Article V except to the extent
the indemnifying party is prejudiced by such failure. The
indemnifying party shall have the right to participate in, and, to
the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume control of
the defense thereof with counsel mutually reasonably satisfactory
to the indemnifying party and the Investor Indemnitee or Company
Indemnitee, as the case may be; provided, however, that an Investor
Indemnitee or Company Indemnitee shall have the right to retain its
own counsel with the actual and reasonable third party fees and
expenses of not more than one counsel for such Investor Indemnitee
or Company Indemnitee to be paid by the indemnifying party, if, in
the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Investor
Indemnitee or Company Indemnitee and the indemnifying party would
be inappropriate due to actual or potential differing interests
between such Investor Indemnitee or Company Indemnitee and any
other party represented by such counsel in such proceeding. The
Investor Indemnitee or Company Indemnitee shall cooperate fully
with the indemnifying party in connection with any negotiation or
defense of any such action or claim by the indemnifying party and
shall furnish to the indemnifying party all information reasonably
available to the Investor Indemnitee or Company Indemnitee which
relates to such action or claim. The indemnifying party shall keep
the Investor Indemnitee or Company Indemnitee reasonably apprised
as to the status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for any
settlement of any action, claim or proceeding effected without its
prior written consent, provided, however, that the indemnifying
party shall not unreasonably withhold, delay or condition its
consent. No indemnifying party shall, without the prior written
consent of the Investor Indemnitee or Company Indemnitee, consent
to entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Investor Indemnitee
or Company Indemnitee of a release from all liability in respect to
such claim or litigation. Following indemnification as provided for
hereunder, the indemnifying party shall be subrogated to all rights
of the Investor Indemnitee or Company Indemnitee with respect to
all third parties, firms or corporations relating to the matter for
which indemnification has been made. The indemnification required
by this Article V shall be made by
periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received and
payment therefor is due.
Section 5.04 Remedies.
The remedies provided for in this Article V are not exclusive and
shall not limit any right or remedy which may be available to any
indemnified person at law or equity. The obligations of the parties
to indemnify or make contribution under this Article V shall
survive expiration or termination of this Agreement for a period of
three years. Notwithstanding anything to the contrary under this
Agreement or Applicable Law, no party shall be entitled to any
indemnification pursuant to this Article V (other than claims for
any damages resulting from fraud) until the aggregate amount of all
such damages that would otherwise be indemnifiable to such party
equals or exceeds $50,000 (the “Basket”),
at which time such party shall be entitled to indemnification for
the full amount of all damages (including all damages incurred
prior to exceeding the Basket).
Section 5.05 Limitation
of liability.
Notwithstanding the foregoing, no party shall be entitled to
recover from the other party for punitive, indirect, incidental or
consequential damages.
Article VI.
Covenants of the Company
Section 6.01 Registration
Statement.
(a)The
Registration Statement.
The Company has filed, in accordance with the provisions of the
Securities Act and the rules and regulations thereunder, with the
SEC a shelf registration statement on Form S-3 (File Number
333-263298) (the “Initial
Registration Statement”)
including a base prospectus, with respect to the issuance and sale
of securities by the Company, including Common Shares, which
contains, among other things a Plan of Distribution section
disclosing the methods by which the Company may sell the Common
Shares. The Initial Registration Statement was declared effective
on April 25, 2022 and remains in effect on the date hereof. Except
where the context otherwise requires, the Initial Registration
Statement, as amended when it became effective, including all
documents filed as part thereof or incorporated by reference
therein, and including any information contained in a Prospectus
subsequently filed with the SEC pursuant to Rule 424(b) under the
Securities Act or deemed to be a part of the Initial Registration
Statement pursuant to Rule 430B of the Securities Act, is herein
called the “Registration
Statement.”
(b)Initial
Disclosure.
Promptly after the date hereof (and prior to the Company delivering
an Advance Notice to the Investor hereunder), the Company shall
file with the SEC a report on Form 8-K or such other appropriate
form as determined by counsel to the Company, relating to the
transactions contemplated by this Agreement and a preliminary
Prospectus Supplement pursuant to Rule 424(b) of the Securities Act
disclosing all information relating to the transaction contemplated
hereby required to be disclosed therein and an updated Plan of
Distribution, including, without limitation, the name of the
Investor, the number of Shares being offered hereunder, the terms
of the offering, the purchase price of the Shares, and other
material terms of the offering, and any other information or
disclosure necessary to register the transactions contemplated
herein (collectively, the “Initial
Disclosure”)
and shall provide the Investor with 24 hours to review the Initial
Disclosure prior to its filing. Promptly, and in any event no later
than two days after each Advance Date, the Company shall file with
the SEC a Prospectus Supplement pursuant to Rule 424(b) of the
Securities Act disclosing all information relating to the
particular Advance to be disclosed therein, including, without
limitation, the number of Shares offered and the purchase price of
the Shares, and other material terms of the particular offering,
and any other information or disclosure necessary to register the
Shares issued pursuant to such Advance.
(c)Maintaining
a Registration Statement.
The Company shall use commercially reasonable efforts to maintain
the effectiveness of any Registration Statement with respect to the
Shares at all times during the Commitment Period, provided,
however, that the Company shall be under no further obligation to
maintain the effectiveness of the Registration Statement to the
extent permitted pursuant to Section 2.04. Notwithstanding anything
to the contrary contained in this Agreement, the Company shall
ensure that, when filed, each Registration Statement (including,
without limitation, all amendments and supplements
thereto) and the prospectus (including, without limitation, all
amendments and supplements thereto) used in connection with such
Registration Statement shall not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein, or necessary to make the statements therein (in the
case of prospectuses, in the light of the circumstances in which
they were made) not misleading. During the Commitment Period, the
Company shall notify the Investor promptly if (i) the Registration
Statement shall cease to be effective under the Securities Act,
(ii) the Common Shares shall cease to be authorized for listing on
the Principal Market, (iii) the Common Shares cease to be
registered under Section 12(b) or Section 12(g) of the
Exchange Act or (iv) the Company fails to file in a timely manner
all reports and other documents required of it as a reporting
company under the Exchange Act.
(d)Filing
Procedures.
Not less than one business day prior to the filing of a
Registration Statement and not less than one business day prior to
the filing of any related amendments and supplements to any
Registration Statement (except for any amendments or supplements
caused by the filing of any annual reports on Form 10-K, quarterly
reports on Form 10-Q, current reports on Form 8-K, and any similar
or successor reports), the Company shall furnish to the Investor
copies of all such documents proposed to be filed, which documents
(other than those filed pursuant to Rule 424 promulgated under the
Securities Act) will be subject to the reasonable and prompt review
of the Investor (in each of which cases, if such document contains
material non-public information as consented to by the Investor
pursuant to Section 6.13, the information provided to Investor will
be kept strictly confidential until filed and treated as subject to
Section 6.08). The Investor shall furnish comments on a
Registration Statement and any related amendment and supplement to
a Registration Statement to the Company within 24 hours of the
receipt thereof. If the Investor fails to provide comments to the
Company within such 24-hour period, then the Registration
Statement, related amendment or related supplement, as applicable,
shall be deemed accepted by the Investor in the form originally
delivered by the Company to the Investor.
(e)Delivery
of Final Documents.
The Company shall furnish to the Investor without charge, (i) at
least one copy of each Registration Statement as declared effective
by the SEC and any amendment(s) thereto, including financial
statements and schedules, all documents incorporated therein by
reference, all exhibits and each preliminary prospectus, (ii) at
the request of the Investor, at least one copy of the final
prospectus included in such Registration Statement and all
amendments and supplements thereto (or such other number of copies
as the Investor may reasonably request) and (iii) such other
documents as the Investor may reasonably request from time to time
in order to facilitate the disposition of the Common Shares owned
by the Investor pursuant to a Registration Statement. Filing of the
forgoing with the SEC via its EDGAR system shall satisfy the
requirements of this section.
(f)Amendments
and Other Filings.
The Company shall (i) prepare and file with the SEC such
amendments (including post-effective amendments) and
supplements to a Registration Statement and the related prospectus
used in connection with such Registration Statement, which
prospectus is to be filed pursuant to Rule 424 promulgated under
the Securities Act, as may be necessary to keep such Registration
Statement effective at all times during the Commitment
Period.
(g)Blue-Sky.
The Company shall use its commercially reasonable efforts to, if
required by Applicable Law, (i) register and qualify the Common
Shares covered by a Registration Statement under such other
securities or “blue sky” laws of such jurisdictions in the United
States as the Investor reasonably requests, (ii) prepare and
file in those jurisdictions, such amendments (including
post-effective amendments) and supplements to such registrations
and qualifications as may be necessary to maintain the
effectiveness thereof during the Commitment Period, (iii) take such
other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Commitment
Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Common Shares for sale in such
jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (w)
make any change to its Articles of Incorporation or Bylaws, (x)
qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 6.01(f), (y)
subject itself to general taxation in any such jurisdiction, or (z)
file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify the Investor of the
receipt by the Company of any
notification with respect to the suspension of the registration or
qualification of any of the Common Shares for sale under the
securities or “blue sky” laws of any jurisdiction in the United
States or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose.
Section 6.02 Suspension
of Registration Statement.
(a)Establishment
of a Black Out Period.
During the Commitment Period, the Company from time to time may
suspend the use of the Registration Statement by written notice to
the Investor in the event that the Company determines in its sole
discretion in good faith that such suspension is necessary to (A)
delay the disclosure of material nonpublic information concerning
the Company, the disclosure of which at the time is not, in the
good faith opinion of the Company, in the best interests of the
Company or (B) amend or supplement the Registration Statement or
prospectus so that such Registration Statement or prospectus shall
not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading (a “Black
Out Period”).
(b)No
Sales by Investor During the Black Out Period.
During such Black Out Period, the Investor agrees not to sell any
Common Shares of the Company.
(c)Limitations
on the Black Out Period.
The Company shall not impose any Black Out Period that is longer
than 60 days or in a manner that is more restrictive (including,
without limitation, as to duration) than the comparable
restrictions that the Company may impose on transfers of the
Company’s equity securities by its directors and senior executive
officers. In addition, the Company shall not deliver any Advance
Notice during any Black Out Period. If the public announcement of
such material, nonpublic information is made during a Black Out
Period, the Black Out Period shall terminate immediately after such
announcement, and the Company shall immediately notify the Investor
of the termination of the Black Out Period.
Section 6.03 Listing
of Common Shares.
As of each Advance Date, the Shares to be sold by the Company from
time to time hereunder will have been registered under Section
12(b) of the Exchange Act and approved for listing on the Principal
Market, subject to official notice of issuance.
Section 6.04 Opinion
of Counsel.
Prior to the date of the delivery by the Company of the first
Advance Notice, the Investor shall have received an opinion letter
from counsel to the Company in form and substance reasonably
satisfactory to the Investor.
Section 6.05 Exchange
Act Registration.
The Company will file in a timely manner all reports and other
documents required of it as a reporting company under the Exchange
Act and will not take any action or file any document (whether or
not permitted by Exchange Act or the rules thereunder) to terminate
or suspend its reporting and filing obligations under the Exchange
Act.
Section 6.06 Transfer
Agent Instructions.
For any time while there is a Registration Statement in effect for
this transaction, the Company shall (if required by the transfer
agent for the Common Shares) cause legal counsel for the Company to
deliver to the transfer agent for the Common Shares (with a copy to
the Investor) instructions to issue Common Shares to the Investor
free of restrictive legends upon each Advance if the delivery of
such instructions are consistent with Applicable Law.
Section 6.07 Corporate
Existence.
The Company will use commercially reasonable efforts to preserve
and continue the corporate existence of the Company during the
Commitment Period.
Section 6.08 Notice
of Certain Events Affecting Registration; Suspension of Right to
Make an Advance.
The Company will promptly notify the Investor, and confirm in
writing, upon its becoming aware of the occurrence of any of the
following events in respect of a Registration Statement or related
prospectus relating to an offering of Common Shares (in each of
which cases the information provided to Investor will be kept
strictly confidential): (i) except for requests made in connection
with SEC investigations disclosed in SEC Documents, receipt of any
request
for additional information by the SEC or any other Federal or state
governmental authority during the period of effectiveness of the
Registration Statement or any request for amendments or supplements
to the Registration Statement or related prospectus; (ii) the
issuance by the SEC or any other Federal governmental authority of
any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose;
(iii) receipt of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the
Common Shares for sale in any jurisdiction or the initiation or
written threat of any proceeding for such purpose; (iv) the
happening of any event that makes any statement made in the
Registration Statement or related prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in the Registration Statement, related prospectus or
documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case
of the related prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or of the necessity to amend the Registration Statement
or supplement a related prospectus to comply with the Securities
Act or any other law; and (v) the Company’s reasonable
determination that a post-effective amendment to the Registration
Statement would be appropriate; and the Company will promptly make
available to the Investor any such supplement or amendment to the
related prospectus. The Company shall not deliver to the Investor
any Advance Notice, and the Company shall not sell any Shares
pursuant to any pending Advance Notice (other than as required
pursuant to Section 2.02(d)), during the continuation of any of the
foregoing events (each of the events described in the immediately
preceding clauses (i) through (v), inclusive, a
“Material
Outside Event”).
Section 6.09 Consolidation.
If an Advance Notice has been delivered to the Investor, then the
Company shall not effect any consolidation of the Company with or
into, or a transfer of all or substantially all the assets of the
Company to another entity before the transaction contemplated in
such Advance Notice has been closed in accordance with Section 2.02
hereof, and all Shares in connection with such Advance have been
received by the Investor.
Section 6.10 Market
Activities.
The Company will not, directly or indirectly, take any action
designed to cause or result in, or that constitutes or might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company under
Regulation M of the Exchange Act.
Section 6.11 Expenses.
The Company, whether or not the transactions contemplated hereunder
are consummated or this Agreement is terminated, will pay all
expenses incident to the performance of its obligations hereunder,
including but not limited to (i) the preparation, printing and
filing of the Registration Statement and each amendment and
supplement thereto, of each prospectus and of each amendment and
supplement thereto; (ii) the preparation, issuance and delivery of
any Shares issued pursuant to this Agreement, (iii) all reasonable
fees and disbursements of the Company’s counsel, accountants and
other advisors (but not, for the avoidance doubt, the fees and
disbursements of Investor’s counsel, accountants and other
advisors), (iv) the qualification of the Shares under securities
laws in accordance with the provisions of this Agreement, including
filing fees in connection therewith, (v) the printing and delivery
of copies of any prospectus and any amendments or supplements
thereto, (vi) the fees and expenses incurred in connection with the
listing or qualification of the Shares for trading on the Principal
Market, or (vii) filing fees of the SEC and the Principal
Market.
Section 6.12 Current
Report.
On or before 9:30 a.m., New York time, on the second business day
after the date of this Agreement, the Company shall file a current
report on Form 8-K describing all the material terms of the
transactions contemplated by the Transaction Documents in the form
required by the 1934 Act and attaching all the material Transaction
Documents (including, without limitation, this Agreement (and all
schedules to this Agreement) (including all attachments, the
“Current
Report”).
The Company shall not, and the Company shall cause each of its
Subsidiaries and each of its and their respective officers,
directors, employees and agents not to, provide the Investor with
any material, non-public information regarding the Company or any
of its Subsidiaries without the express prior written consent of
the Investor (which may be granted or withheld in the Investor’s
sole discretion and if granted must include an agreement to keep
such information confidential until publicly disclosed); it being
understood that the mere notification of Investor required pursuant
to Section 6.08(iv) hereof shall not in and of
itself be deemed to be material non-public information.
Notwithstanding anything contained in this Agreement to the
contrary, the Company expressly agrees that it shall publicly
disclose, no later than four (4) Business Days following the date
hereof, but in any event prior to delivering the first Advance
Notice hereunder, any information communicated to the Investor by
or, to the knowledge of the Company, on behalf of the Company in
connection with the transactions contemplated herein, which,
following the date hereof would, if not so disclosed, constitute
material, non-public information regarding the Company or its
Subsidiaries.
Section 6.13 Advance
Notice Limitation.
The Company shall not deliver an Advance Notice if a shareholder
meeting or corporate action date, or the record date for any
shareholder meeting or any corporate action, would fall during the
period beginning two Trading Days prior to the date of delivery of
such Advance Notice and ending two Trading Days following the
Closing of such Advance.
Section 6.14 Use
of Proceeds.
The Company will use the proceeds from the sale of the Common
Shares hereunder for working capital and other general corporate
purposes or, if different, in a manner consistent with the
application thereof described in the Registration Statement.
Neither the Company nor any Subsidiary will, directly or
indirectly, use the proceeds of the transactions contemplated
herein, or lend, contribute, facilitate or otherwise make
available such proceeds to any Person (i) to fund, either directly
or indirectly, any activities or business of or with any Person
that is identified on the list of Specially Designated Nationals
and Blocker Persons maintained by OFAC, or in any country or
territory, that, at the time of such funding, is, or whose
government is, the subject of Sanctions or Sanctions Programs, or
(ii) in any other manner that will result in a violation of
Sanctions or Applicable Laws.
Section 6.15 Compliance
with Laws.
The Company shall comply in all material respects with all
Applicable Laws.
Article VII.
Conditions for Delivery of Advance Notice
Section 7.01 Conditions
Precedent to the Right of the Company to Deliver an Advance
Notice.
The right of the Company to deliver an Advance Notice and the
obligations of the Investor hereunder with respect to an Advance is
subject to the satisfaction by the Company, on each Advance Notice
Date (a “Condition
Satisfaction Date”),
of each of the following conditions:
(a)Accuracy
of the Company’s Representations and Warranties.
The representations and warranties of the Company in this Agreement
shall be true and correct in all material respects.
(b)Registration
of the Common Shares with the SEC.
There is an effective Registration Statement pursuant to which the
Investor is permitted to utilize the prospectus thereunder to
resell all of the Common Shares issuable pursuant to such Advance
Notice. The Company shall have filed with the SEC in a timely
manner all reports, notices and other documents required under the
Exchange Act and applicable SEC regulations during the twelve-month
period immediately preceding the applicable Condition Satisfaction
Date.
(c)Authority.
The Company shall have obtained all permits and qualifications
required by any applicable state for the offer and sale of all the
Common Shares issuable pursuant to such Advance Notice or shall
have the availability of exemptions therefrom. The sale and
issuance of such Common Shares shall be legally permitted by all
laws and regulations to which the Company is subject.
(d)No
Material Outside Event.
No Material Outside Event shall have occurred and be
continuing.
(e)Performance
by the Company.
The Company shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions
required by this Agreement to be performed, satisfied or complied
with by the Company at or prior the applicable Condition
Satisfaction Date (for the avoidance of doubt, other than in
respect of the Company’s obligation pursuant to Clause 2.02 herein,
if the Company shall have performed, satisfied and complied in all
material respects with all covenants,
agreements and conditions required by this Agreement at the time of
the applicable Condition Satisfaction Date, but did not comply with
any timing requirement set forth herein, then this condition shall
be deemed satisfied unless the Investor is material prejudiced by
the failure of the Company to comply with any such timing
requirement).
(f)No
Injunction.
No statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent
jurisdiction that prohibits or directly, materially and adversely
affects any of the transactions contemplated by this
Agreement.
(g)No
Suspension of Trading in or Delisting of Common
Shares.
The Common Shares are quoted for trading on the Principal Market
and all the Shares issuable pursuant to such Advance Notice will be
listed or quoted for trading on the Principal Market. The issuance
of Common Shares with respect to the applicable Advance Notice will
not violate the shareholder approval requirements of the Principal
Market. The Company shall not have received any written notice that
is then still pending threatening the continued quotation of the
Common Shares on the Principal Market.
(h)Authorized.
There shall be a sufficient number of authorized but unissued and
otherwise unreserved Common Shares for the issuance of all of the
Shares issuable pursuant to such Advance Notice.
(i)Executed
Advance Notice.
The representations contained in the applicable Advance Notice
shall be true and correct in all material respects as of the
applicable Condition Satisfaction Date.
(j)Consecutive
Advance Notices.
Except with respect to the first Advance Notice, the Company shall
have delivered all Shares relating to all prior Advances, and,
unless waived by the Investor, at least 5 Trading Days shall have
elapsed from the immediately preceding Advance Date.
Article VIII.
Non-Disclosure of Non-Public Information
The Company covenants and agrees that, other than as expressly
required by Section 6.08 hereof, or, with the Investor’s consent
pursuant to Section 6.01(c) and Section 6.13, it shall refrain from
disclosing, and shall cause its officers, directors, employees and
agents to refrain from disclosing, any material non-public
information (as determined under the Securities Act, the Exchange
Act, or the rules and regulations of the SEC) to the Investor
without also disseminating such information to the public, unless
prior to disclosure of such information the Company identifies such
information as being material non-public information and provides
the Investor with the opportunity to accept or refuse to accept
such material non-public information for review. Unless
specifically agreed to in writing, in no event shall the Investor
have a duty of confidentiality, or be deemed to have agreed to
maintain information in confidence, with respect to the delivery of
any Advance Notices.
Article IX.
Non-Exclusive Agreement
Notwithstanding anything contained herein, this Agreement and the
rights awarded to the Investor hereunder are non-exclusive, and the
Company may, at any time throughout the term of this Agreement and
thereafter, issue and allot, or undertake to issue and allot, any
shares and/or securities and/or convertible notes, bonds,
debentures, options to acquire shares or other securities and/or
other facilities which may be converted into or replaced by Common
Shares or other securities of the Company, and to extend, renew
and/or recycle any bonds and/or debentures, and/or grant any rights
with respect to its existing and/or future share
capital.
Article X.
Choice of Law/Jurisdiction
This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York without regard to the
principles of conflict of laws. The parties further agree that any
action between them shall be heard in New York County, New York,
and expressly consent to the jurisdiction and venue of the Supreme
Court of New York, sitting in New York County, New York and the
United States District Court of the Southern District of New York,
sitting in New York, New York, for the adjudication of any civil
action asserted pursuant to this Agreement.
Article XI.Assignment;
Termination
Section 11.01 Assignment.
Neither this Agreement nor any rights or obligations of the parties
hereto may be assigned to any other Person.
Section 11.02 Termination.
(a)Unless
earlier terminated as provided hereunder, this Agreement shall
terminate automatically on the earliest of (i) the first day
of the month next following the 24-month anniversary of the date
hereof or (ii) the date on which the Investor shall have made
payment of Advances pursuant to this Agreement for Common Shares
equal to the Commitment Amount.
(b)The
Company may terminate this Agreement effective upon five Trading
Days’ prior written notice to the Investor; provided that (i) there
are no outstanding Advance Notices, the Common Shares under which
have yet to be issued, (ii) there are no outstanding Pre-Advance
Loans which have not be fully repaid, and (iii) the Company has
paid all amounts owed to the Investor pursuant to this Agreement.
This Agreement may be terminated at any time by the mutual written
consent of the parties, effective as of the date of such mutual
written consent unless otherwise provided in such written
consent.
(c)Nothing
in this Section 11.02 shall be deemed to release the Company or the
Investor from any liability for any breach under this Agreement, or
to impair the rights of the Company and the Investor to compel
specific performance by the other party of its obligations under
this Agreement. The indemnification provisions contained in Article
V shall survive termination hereunder.
Article XII.Notices
Other than with respect to Advance Notices, which must be in
writing and will be deemed delivered on the day set forth in
Section 2.01(b), any notices, consents, waivers, or other
communications required or permitted to be given under the terms of
this Agreement must be in writing and will be deemed to have been
delivered (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile or e-mail if sent on a Trading Day,
or, if not sent on a Trading Day, on the immediately following
Trading Day; (iii) 5 days after being sent by U.S. certified mail,
return receipt requested, (iv) 1 day after deposit with a
nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications (except for Advance
Notices which shall be delivered in accordance with
Exhibit A
hereof) shall be:
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If to the Company, to:
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EOS ENERGY ENTERPRISES, INC.
3920 Park Avenue
Edison, New Jersey 08820
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Attention: Melissa Berube |
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Telephone: [***]
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Email: [***]
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With a copy to (which shall not
constitute notice or delivery of process) to:
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DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, NY 10017
Attention: Michael Kaplan or Roshni Banker Cariello
Telephone: [***] or [***]
Email: [***] or [***]
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If to the Investor(s): |
YA II PN, Ltd. |
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1012 Springfield Avenue |
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Mountainside, NJ 07092 |
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Attention: Mark Angelo |
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Portfolio Manager |
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Telephone: [***]
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Email: [***]
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With a Copy (which shall not
constitute notice or delivery of process) to:
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Troy Rillo, Esq.
1012 Springfield Avenue
Mountainside, NJ 07092
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Telephone: [***]
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Email: [***]
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Either may change its information contained in this Article XII by
delivering notice to the other party as set forth
herein.
Article XIII.Miscellaneous
Section 13.01 Counterparts.
This Agreement may be executed in identical counterparts, both
which shall be considered one and the same agreement and shall
become effective when counterparts have been signed by each party
and delivered to the other party. Facsimile or other electronically
scanned and delivered signatures, including by e-mail attachment,
shall be deemed originals for all purposes of this
Agreement.
Section 13.02 Entire
Agreement; Amendments.
This Agreement supersedes all other prior oral or written
agreements between the Investor, the Company, their respective
affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement contains the entire
understanding of the parties with respect to the matters covered
herein and, except as specifically set forth herein, neither the
Company nor the Investor makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision
of this Agreement may be waived or amended other than by an
instrument in writing signed by the parties to this
Agreement.
Section 13.03 Reporting
Entity for the Common Shares.
The reporting entity relied upon for the determination of the
trading price or trading volume of the Common Shares on any given
Trading Day for the purposes of this
Agreement shall be Bloomberg, L.P. or any successor thereto. The
written mutual consent of the Investor and the Company shall be
required to employ any other reporting entity.
Section 13.04 Commitment
Fee, Due Diligence and Structuring Fee.
Each of the parties shall pay its own fees and
expenses (including the fees of any attorneys, accountants,
appraisers or others engaged by such party) in connection with this
Agreement and the transactions contemplated hereby, except that the
Company shall pay to YA Global II SPV, LLC, a subsidiary of the
Investor, a structuring and due diligence fee in the amount of
$10,000, which the Investor acknowledges has been received prior to
the date hereof. On the date hereof, the Company will issue to the
Investor an aggregate of 465,117 Common Shares (the
“Commitment
Fee Shares”)
as a commitment fee (for the avoidance of doubt, the Commitment Fee
Shares will be issued as “restricted shares” as that term is
defined in Rule 144 of the Securities Act).
Section 13.05 Brokerage.
Each of the parties hereto represents that it has had no dealings
in connection with this transaction with any finder or broker who
will demand payment of any fee or commission from the other party.
The Company on the one hand, and the Investor, on the other hand,
agree to indemnify the other against and hold the other harmless
from any and all liabilities to any person claiming brokerage
commissions or finder’s fees on account of services purported to
have been rendered on behalf of the indemnifying party in
connection with this Agreement or the transactions contemplated
hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF,
the parties hereto have caused this Standby Equity Purchase
Agreement to be executed by the undersigned, thereunto duly
authorized, as of the date first set forth above.
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COMPANY: |
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EOS ENERGY ENTERPRISES, INC.
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By:
/s/ Randall Gonzales
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Name: Randall Gonzales |
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Title: Chief Financial Officer |
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INVESTOR: |
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YA II PN, Ltd. |
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By: Yorkville Advisors Global,
LP |
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Its: Investment Manager |
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By: Yorkville Advisors Global II,
LLC
Its: General Partner
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By:
/s/ Matt Beckman
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Name: Matt Beckman
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Title: Member
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EXHIBIT A
ADVANCE NOTICE
EXHIBIT B
FORM OF SETTLEMENT DOCUMENT
EXHIBIT C
FORM OF PROMISSORY NOTE
Schedule I
(Holder Account Information)
Exhibit A
Closing Statement
DISCLOSURE SCHEDULE
Eos Energy Enterprises (NASDAQ:EOSE)
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