The
Company will furnish without charge to each stockholder who so requests, a statement of the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock or series thereof of the Company and the qualifications,
limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued
and shall be held subject to all the provisions of the Company’s Third Amended and Restated Certificate of Incorporation
and all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may
be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents.
The
following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written
out in full according to applicable laws or regulations:
(PLEASE INSERT
SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))
(PLEASE PRINT OR
TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))
Attorney to transfer
the said shares of Common Stock on the books of the within named Company with full power of substitution in the premises.
WHEREAS, concurrently
with the execution of this Subscription Agreement, BMRG is entering into an agreement (the “Business Combination Agreement”)
for a business combination (the “Business Combination”) with Eos Energy Storage LLC, a Delaware limited liability
company (the “Target”);
WHEREAS, in connection
with the Business Combination, the Subscriber desires to subscribe for and purchase from BMRG, immediately prior to the consummation
of the Business Combination, that number of shares of BMRG’s Class A common stock, par value $0.0001 per share (“Common
Stock”), set forth on the signature page hereto (the “Subscribed Shares”), for a purchase price of
$10.00 per share (the “Per Share Price” and the aggregate of such Per Share Price for all Subscribed Shares
being referred to herein as the “Purchase Price”), in a private placement (the “Private Placement”),
and BMRG desires to issue and sell to the Subscriber the Subscribed Shares in consideration of the payment of the Purchase Price
by or on behalf of Subscriber to BMRG; and
NOW, THEREFORE, in
consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein
contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Subscription.
Subject to the terms and conditions hereof, at the Closing (as defined below), the Subscriber hereby agrees to subscribe for and
purchase, and BMRG hereby agrees to issue and sell to the Subscriber, upon the payment of the Purchase Price, the Subscribed Shares
(such subscription and issuance, the “Subscription”).
2. Closing.
(b) At least
five (5) Business Days before the anticipated Closing Date, BMRG shall deliver written notice to the Subscriber (the “Closing
Notice”) specifying (i) the anticipated Closing Date and (ii) the wire instructions for delivery of the Purchase Price
to BMRG. No later than two (2) Business Days after receiving the Closing Notice, the Subscriber shall deliver to BMRG such information
as is reasonably requested in the Closing Notice in order for BMRG to issue the Subscribed Shares to the Subscriber. The Subscriber
shall deliver to BMRG, on or prior to 8:00 a.m. (Eastern time) (or as soon as practicable after BMRG or its transfer agent (the
“Transfer Agent”) delivers evidence of the issuance to the Subscriber of the Subscribed Shares on and as of
the Closing Date) on the Closing Date the Purchase Price in cash via wire transfer to the account specified in the Closing Notice
against (and concurrently with) delivery by BMRG to the Subscriber of (i) the Subscribed Shares in book entry form, free and clear
of any liens or other restrictions (other than those arising under this Subscription Agreement or state or federal securities laws),
in the name of the Subscriber (or its nominee in accordance with its delivery instructions) or to a custodian designated by the
Subscriber, as applicable, and (ii) written notice from BMRG or the Transfer Agent evidencing the issuance to the Subscriber of
the Subscribed Shares on and as of the Closing Date. In the event that the consummation of the Business Combination does not occur
within two (2) Business Days after the anticipated Closing Date specified in the Closing Notice, BMRG shall promptly (but in no
event later than two (2) Business Days after the anticipated Closing Date specified in the Closing Notice) return the funds so
delivered by the Subscriber to BMRG by wire transfer in immediately available funds to the account specified by the Subscriber,
and any book entries showing the Subscriber as the owner of the Subscribed Shares shall be deemed cancelled. BMRG’s obligation
under the immediately preceding sentence shall survive any termination of this Agreement. For the purposes of this Subscription
Agreement, “Business Day” means any day other than a Saturday, Sunday or a day on which the Federal Reserve
Bank of New York is closed.
3. Closing
Conditions.
(a) The Closing
shall be subject to the satisfaction or valid waiver by BMRG, on the one hand, and such Subscriber, on the other hand, of the conditions
that, on the Closing Date:
(i) no suspension
of the qualification of the Subscribed Shares for offering or sale or trading in any jurisdiction, or initiation or threatening
of any proceedings for any of such purposes, shall have occurred;
(ii) no applicable
governmental authority shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation
(whether temporary, preliminary or permanent) which is then in effect and has the effect of making the consummation of the transactions
contemplated hereby illegal or otherwise restraining or prohibiting the consummation of the transactions contemplated hereby, and
no governmental authority shall have instituted or threatened in writing a proceeding seeking to impose any such restraint or prohibition;
and
(iii) all
conditions precedent to the closing of the Business Combination, including the approval of BMRG’s stockholders, shall have
been satisfied or waived (other than those conditions which, by their nature, are to be satisfied at the closing of the Business
Combination, including without limitation as a result of the Private Placement).
(b) The obligation
of BMRG to consummate the transactions contemplated hereby at the Closing shall be subject to the satisfaction or valid waiver
by BMRG of the additional conditions that, on the Closing Date, with respect to the Subscriber:
(i) all representations
and warranties of the Subscriber contained in this Subscription Agreement shall be true and correct in all material respects (other
than representations and warranties that are qualified as to materiality or Subscriber Material Adverse Effect (as defined below),
which representations and warranties shall be true in all respects) at and as of the Closing Date (except for such representations
and warranties that are made as of a specific date, which shall be true and correct in all material respects (other than representations
and warranties that are qualified as to materiality or Subscriber Material Adverse Effect, which representations and warranties
shall be true in all respects) as of such specified date); and
(ii) the Subscriber
shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by
this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing.
(c) The obligation
of the Subscriber to consummate the transactions contemplated hereby at the Closing shall be subject to the satisfaction or valid
waiver by the Subscriber of the additional conditions that, on the Closing Date:
(i) all representations
and warranties of BMRG contained in this Subscription Agreement shall be true and correct in all material respects (other than
the representations and warranties that are qualified as to materiality or BMRG Material Adverse Effect (as defined below), which
representations and warranties shall be true in all respects) at and as of the Closing Date (except for such representations and
warranties that are made as of a specific date, which shall be true and correct in all material respects (other than the representations
and that are qualified as to materiality or BMRG Material Adverse Effect, which representations and warranties shall be true in
all respects) as of such specified date); and
(ii) BMRG
shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by
this Subscription Agreement to be performed, satisfied or complied with by it at or prior to the Closing.
(d) Prior to
or at the Closing, the Subscriber shall deliver to BMRG a duly completed and executed Internal Revenue Service Form W-9 or appropriate
Form W-8.
4. Further
Assurances. At the Closing, the parties hereto shall execute and deliver such additional documents and take such additional
actions as the parties reasonably may deem to be practical and necessary in order to consummate the subscription as contemplated
by this Subscription Agreement.
5. BMRG
Representations and Warranties. BMRG represents and warrants to the Subscriber that:
(a) BMRG is duly incorporated,
validly existing and in good standing as a corporation under the laws of the State of Delaware, with corporate power and authority
to own, lease and operate its properties and conduct its business as presently conducted and to enter into, deliver and perform
its obligations under this Subscription Agreement.
(b) The Subscribed Shares
have been duly authorized and, when issued and delivered to the Subscriber against full payment therefor in accordance with the
terms of this Subscription Agreement, will be validly issued, fully paid and non-assessable and will not have been issued in violation
of any preemptive rights created under BMRG’s amended and restated certificate of incorporation (as amended) or under the
laws of the State of Delaware.
(c) This Subscription
Agreement has been duly executed and delivered by BMRG and, assuming the due authorization, execution and delivery of the same
by the Subscriber, is the valid and legally binding obligation of BMRG, enforceable against BMRG in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors
generally and by the availability of equitable remedies.
(d) The execution and
delivery of this Subscription Agreement, the issuance and sale of the Subscribed Shares and the compliance by BMRG with all of
the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the property or assets of BMRG pursuant to the terms of (i) any indenture,
mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which BMRG is a party or by which BMRG
is bound or to which any of the property or assets of BMRG is subject, which would have a material adverse effect on the business,
financial condition, stockholders’ equity or results of operations of BMRG, taken as a whole, or the ability of BMRG to consummate
the transactions contemplated hereby, including the issuance and sale of the Subscribed Shares (a “BMRG Material Adverse
Effect”); (ii) the organizational documents of BMRG; or (iii) any statute or any judgment, order, rule or regulation
of any court or governmental agency or body, domestic or foreign, having jurisdiction over BMRG or any of its properties that would
have a BMRG Material Adverse Effect.
(e) Assuming the accuracy
of the representations and warranties of the Subscriber, BMRG is not required to obtain any consent, waiver, authorization or order
of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority, self-regulatory organization (including the New York Stock Exchange (the “NYSE”) or The Nasdaq Stock
Market (“Nasdaq”)) or other person in connection with the execution, delivery and performance by BMRG of this
Subscription Agreement (including, without limitation, the issuance of the Subscribed Shares), other than (i) the filing with the
U.S. Securities and Exchange Commission (the “SEC”) of the Registration Statement (as defined below), (ii) filings
required by applicable state securities laws, (iii) if applicable, the filing of a Notice of Exempt Offering of Securities on Form
D with the SEC under Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities Act”),
(iv) a filing with the SEC of a Current Report on Form 8-K disclosing the material terms of the transactions contemplated hereby,
(v) filings or approvals required by the NYSE or Nasdaq, (vi) those required to consummate the Business Combination as provided
by the Business Combination Agreement, (vii) the filing of notification under the Hart Scott Rodino Antitrust Improvements Act
of 1976, if applicable, and (viii) those the failure of which to obtain would not be reasonably likely to have, individually or
in the aggregate, a BMRG Material Adverse Effect.
(f) The authorized and
issued capital stock of BMRG are as set forth in BMRG’s prospectus filed pursuant to Rule 424(b)(4) on May 20, 2020 (the
“Prospectus”). All issued and outstanding shares of Common Stock have been duly authorized and validly issued,
are fully paid and are non-assessable and are not subject to preemptive rights. Except as set forth in the Prospectus, other subscription
agreements for the Private Placement and the Business Combination Agreement, there are no outstanding options, warrants or other
rights to subscribe for, purchase or acquire from BMRG any shares of Common Stock or other equity interests in BMRG (collectively,
“Equity Interests”) or securities convertible into or exchangeable or exercisable for Equity Interests.
(g) BMRG has made available
to the Subscriber (including via the SEC’s EDGAR system) a copy of each form, report, statement, schedule, prospectus, proxy,
registration statement and other document filed by BMRG with the SEC since its initial public offering (“IPO”).
None of BMRG’s filings with the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
contained, when filed or, if amended, as of the date of such amendment with respect to those disclosures that are amended, any
untrue statement of a material fact or omitted 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.
(h) The issued and outstanding
shares of BMRG’s Common Stock (which prior to the closing of the Business Combination is named Class A common stock and upon
such closing will be renamed common stock) are registered pursuant to Section 12(b) of the Exchange Act and are currently listed
for trading on the NYSE under the symbol “BMRG.” Other than as has been disclosed by BMRG in its filings with the SEC,
there is no suit, action, proceeding or investigation pending or, to the knowledge of BMRG, threatened against BMRG by the NYSE
or the SEC with respect to any intention by such entity to deregister the shares of Common Stock or prohibit or terminate the listing
of the shares of Common Stock on the NYSE.
(i) BMRG is not, and
immediately after receipt of payment for the Subscribed Shares will not be, an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
6. Subscriber
Representations and Warranties. The Subscriber represents and warrants to BMRG that:
(a) The Subscriber (i)
is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and (ii) has the requisite
power and authority to enter into and perform its obligations under this Subscription Agreement.
(b) This Subscription
Agreement has been duly executed and delivered by the Subscriber, and assuming the due authorization, execution and delivery of
the same by BMRG, this Subscription Agreement shall constitute the valid and legally binding obligation of the Subscriber, enforceable
against the Subscriber in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors generally and by the availability of equitable remedies. Subscriber at the Closing
will have sufficient funds to pay the Purchase Price pursuant to Section 1 of this Subscription Agreement.
(c) The execution and
delivery of this Subscription Agreement, the purchase of the Subscribed Shares and the compliance by the Subscriber with all of
the provisions of this Subscription Agreement and the consummation of the transactions contemplated herein will not conflict with
or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any of the property or assets of the Subscriber pursuant to the terms of,
(i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Subscriber
is a party or by which the Subscriber is bound or to which any of the property or assets of the Subscriber is subject; (ii) the
organizational documents of the Subscriber; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the Subscriber or any of its properties that, in the case of clauses
(i) and (iii), would reasonably be expected to have a material adverse effect on the Subscriber’s ability to consummate the
transactions contemplated hereby, including the purchase of the Subscribed Shares (a “Subscriber Material Adverse Effect”).
(d) The Subscriber (i)
is an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) satisfying the applicable
requirements set forth on Schedule A, (ii) is acquiring the Subscribed Shares only for its own account and not for the account
of others, or if the Subscriber is subscribing for the Subscribed Shares as a fiduciary or agent for one or more investor accounts,
each owner of such account is a “qualified institutional buyer” (within the meaning of Rule 144A under the Securities
Act) and the Subscriber has full investment discretion with respect to each such account, and the full power and authority to make
the acknowledgements, representations and agreements herein on behalf of each owner of each such account, and (iii) is not acquiring
the Subscribed Shares with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Securities
Act (and has provided BMRG with the requested information on Schedule A following the signature page hereto). The Subscriber
is not an entity formed for the specific purpose of acquiring the Subscribed Shares.
(e) The Subscriber understands
that the Subscribed Shares are being offered in a transaction not involving any public offering within the meaning of the Securities
Act and that the Subscribed Shares have not been registered under the Securities Act. The Subscriber understands that the Subscribed
Shares may not be resold, transferred, pledged or otherwise disposed of by the Subscriber absent an effective registration statement
under the Securities Act, except (i) to BMRG or a subsidiary thereof, or (ii) pursuant to an applicable exemption from the registration
requirements of the Securities Act, and, in each of cases (i) and (ii), in accordance with any applicable securities laws of the
states and other jurisdictions of the United States, and that any certificates or book-entry position representing the Subscribed
Shares shall contain a legend to such effect. The Subscriber understands that it has been advised to consult legal counsel prior
to making any offer, resale, pledge or transfer of any of the Subscribed Shares.
(f) The Subscriber understands
and agrees that the Subscriber is purchasing the Subscribed Shares directly from BMRG. The Subscriber further acknowledges that
there have not been, and the Subscriber is not relying on, any representations, warranties, covenants or agreements made to the
Subscriber by BMRG, any other party to the Business Combination or any other person or entity, expressly or by implication, other
than those representations, warranties, covenants and agreements of BMRG included in this Subscription Agreement.
(g) In making its decision
to purchase the Subscribed Shares, the Subscriber has relied solely upon independent investigation made by the Subscriber. Without
limiting the generality of the foregoing, the Subscriber has not relied on any statements or other information provided by BMRG
(other than as set forth herein) or any Placement Agent concerning BMRG, the Business Combination or the Subscribed Shares. The
Subscriber acknowledges and agrees that the Subscriber has received such information as the Subscriber deems necessary in order
to make an investment decision with respect to the Subscribed Shares, including with respect to BMRG, the Business Combination
and the Target. The Subscriber represents and agrees that the Subscriber and the Subscriber’s professional advisor(s), if
any, have had the full opportunity to ask such questions, receive such answers and obtain such information as the Subscriber and
the Subscriber’s professional advisor(s), if any, have deemed necessary to make an investment decision with respect to the
Subscribed Shares. The Subscriber acknowledges that certain information provided by BMRG was based on projections, and such projections
were prepared based on assumptions and estimates that are inherently uncertain and are subject to a wide variety of significant
business, economic and competitive risks and uncertainties that could cause actual results to differ materially from those contained
in the projections.
(h) The Subscriber became
aware of this offering of the Subscribed Shares solely by means of direct contact between the Subscriber and BMRG or by means of
contact from any Placement Agent, and the Subscribed Shares were offered to the Subscriber solely by direct contact between the
Subscriber and BMRG or by contact between the Subscriber and any Placement Agent. The Subscriber did not become aware of this offering
of the Subscribed Shares, nor were the Subscribed Shares offered to the Subscriber, by any other means. The Subscriber acknowledges
that BMRG represents and warrants that the Subscribed Shares (i) were not offered by any form of general solicitation or general
advertising and (ii) are not being offered in a manner involving a public offering under, or in a distribution in violation of,
the Securities Act or any state securities laws.
(i) The Subscriber acknowledges
that it is aware that there are substantial risks incident to the purchase and ownership of the Subscribed Shares. The Subscriber
has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment
in the Subscribed Shares, and the Subscriber has had an opportunity to seek, and has sought, such accounting, legal and tax advice
as the Subscriber has considered necessary to make an informed investment decision.
(j) The Subscriber has
adequately analyzed and fully considered the risks of an investment in the Subscribed Shares and determined that the Subscribed
Shares are a suitable investment for the Subscriber and that the Subscriber is able at this time and in the foreseeable future
to bear the economic risk of a total loss of the Subscriber’s investment in BMRG. The Subscriber acknowledges specifically
that a possibility of total loss exists.
(k) The Subscriber understands
and agrees that no federal or state agency has passed upon or endorsed the merits of the offering of the Subscribed Shares or made
any findings or determination as to the fairness of this investment.
(l) The Subscriber does
not have, as of the date hereof, and during the 30-day period immediately prior to the date hereof the Subscriber has not entered
into, any “put equivalent position” as such term is defined in Rule 16a-1 under the Exchange Act or short sale positions
with respect to the securities of BMRG.
(m) The Subscriber acknowledges
and agrees that the book-entry position representing the Subscribed Shares (or each certificate representing such securities if
subsequently requested and obtained by the Subscriber) will bear or reflect, as applicable, a legend substantially similar to the
following:
“THIS SECURITY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND THIS SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) PURSUANT TO ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
(II) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (III) TO THE COMPANY, IN EACH OF CASES (I) THROUGH
(III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL NOTIFY ANY SUBSEQUENT
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE. THE COMPANY MAY REQUIRE THE DELIVERY OF
A WRITTEN OPINION OF COUNSEL, CERTIFICATIONS AND/OR ANY OTHER INFORMATION IT REASONABLY REQUIRES TO CONFIRM THE SECURITIES ACT
EXEMPTION FOR SUCH TRANSACTION.”
(n) The Subscriber’s
acquisition and holding of the Subscribed Shares will not constitute or result in a non-exempt prohibited transaction under Section
406 of the Employee Retirement Income Security Act of 1974, as amended, Section 4975 of the Internal Revenue Code of 1986, as amended
(the “Code”), or any applicable similar law.
(o) If the Subscriber
is not a U.S. person as defined in Rule 902 under the Securities Act or a United States person as defined in the Code, the Subscriber
hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Subscribed Shares or any use of this Subscription Agreement, including (i) the legal requirements
within its jurisdiction for the purchase of the Subscribed Shares, (ii) any foreign exchange restrictions applicable to such purchase,
(iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any,
that may be relevant to the purchase, holding, redemption, sale, or transfer of the Subscribed Shares. The Subscriber’s subscription
and payment for and continued beneficial ownership of the Subscribed Shares will not violate any applicable securities or other
laws of the Subscriber’s jurisdiction.
(p) The Subscriber is
not (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by the U.S. Treasury
Department’s Office of Foreign Assets Control (“OFAC”) or in any Executive Order issued by the President
of the United States and administered by OFAC (“OFAC List”), or a person or entity prohibited by any OFAC sanctions
program, (ii) a Designated National as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (iii) a non-U.S.
shell bank or providing banking services indirectly to a non-U.S. shell bank (collectively, a “Prohibited Investor”).
The Subscriber agrees to provide law enforcement agencies, if requested thereby, such records as required by applicable law, provided
that the Subscriber is permitted to do so under applicable law. If the Subscriber is a financial institution subject to the Bank
Secrecy Act (31 U.S.C. Section 5311 et seq.) (the “BSA”), as amended by the USA PATRIOT Act of 2001 (the “PATRIOT
Act”), and its implementing regulations (collectively, the “BSA/PATRIOT Act”), the Subscriber maintains
policies and procedures reasonably designed to comply with applicable obligations under the BSA/PATRIOT Act. To the extent required,
the Subscriber maintains policies and procedures reasonably designed for the screening of its investors against the OFAC sanctions
programs, including the OFAC List. The Subscriber also represents that, to the extent required, the Subscriber maintains policies
and procedures reasonably designed to ensure that the funds held by the Subscriber and used to purchase the Subscribed Shares were
legally derived.
(q) The Subscriber acknowledges
that in connection with the offer and sale of the Subscribed Shares, (i) no disclosure or offering document has been delivered
to the Subscriber by any Placement Agent or any of their respective affiliates and (ii) no Placement Agent has acted as the Subscriber’s
financial advisor or fiduciary.
(r) Except for the specific
representations and warranties contained in this Section 6 and in any certificate or agreement delivered pursuant hereto,
none of the Subscriber nor any person acting on behalf of the Subscriber nor any of the Subscriber’s affiliates (the “Subscriber
Parties”) has made, makes or shall be deemed to make any other express or implied representation or warranty with respect
to the Subscriber and this offering, and the Subscriber Parties disclaim any such representation or warranty. Except for the specific
representations and warranties expressly made by BMRG in Section 5 of this Subscription Agreement and in any certificate
or agreement delivered pursuant hereto, the Subscriber specifically disclaims that it, or anyone on its behalf, is relying upon
any representations or warranties that may have been made by BMRG or any person acting on behalf of BMRG or any of BMRG’s
affiliates.
(s) No broker or finder
is entitled to any brokerage or finder’s fee or commission solely in connection with the sale of the Subscribed Shares to
Subscriber.
(t) If Subscriber is
an employee benefit plan that is subject to Title I of ERISA, a plan, an individual retirement account or other arrangement that
is subject to section 4975 of the Code or an employee benefit plan that is a governmental plan (as defined in section 3(32) of
ERISA), a church plan (as defined in section 3(33) of ERISA), a non-U.S. plan (as described in section 4(b)(4) of ERISA) or other
plan that is not subject to the foregoing but may be subject to provisions under any other federal, state, local, non-U.S. or other
laws or regulations that are similar to such provisions of ERISA or the Internal Revenue Code of 1986, as amended, or an entity
whose underlying assets are considered to include “plan assets” of any such plan, account or arrangement (each, a “Plan”)
subject to the fiduciary or prohibited transaction provisions of ERISA or section 4975 of the Code, Subscriber represents and warrants
that neither BMRG, nor any of its respective affiliates (the “Transaction Parties”) has acted as the Plan’s
fiduciary, or has been relied on for advice, with respect to its decision to acquire and hold the Subscribed Shares, and none of
the Transaction Parties shall at any time be relied upon as the Plan’s fiduciary with respect to any decision to acquire,
continue to hold or transfer the Subscribed Shares.
7. Registration
of Subscribed Shares.
(a) BMRG agrees that,
prior to the Closing Date, BMRG will file with the SEC (at BMRG’s sole cost and expense) a registration statement registering
the resale of the Subscribed Shares (the “Registration Statement”), and BMRG shall use its commercially reasonable
efforts to have the Registration Statement declared effective upon the Closing, but no later than sixty (60) calendar days following
the Closing Date (the “Effectiveness Deadline”), provided, that the Effectiveness Deadline shall be extended
to ninety (90) calendar days after the Closing Date if the Registration Statement is reviewed by, and receives comments from, the
SEC. BMRG will provide a draft of the Registration Statement to the Subscriber for review at least two (2) business days in advance
of filing the Registration Statement. Notwithstanding the foregoing, if the SEC prevents BMRG from including any or all of the
shares proposed to be registered under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act
for the resale of the Subscribed Shares by the applicable stockholders or otherwise, such Registration Statement shall register
for resale such number of Subscribed Shares which is equal to the maximum number of Subscribed Shares as is permitted by the SEC.
In such event, the number of Subscribed Shares to be registered for each selling stockholder named in the Registration Statement
shall be reduced pro rata among all such selling stockholders. BMRG agrees that BMRG will cause such Registration Statement
to remain effective until the earlier of (i) two years from the issuance of the Subscribed Shares, (ii) the date on which all of
the Subscribed Shares shall have been sold, or (iii) on the first date on which the Subscriber can sell all of its Subscribed Shares
(or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation as to the manner of sale or the
amount of such securities that may be sold.
(b) BMRG further agrees
that, in the event that the Registration Statement has not been declared effective by the Effectiveness Deadline (a “Registration
Default” and the date on which such Registration Default occurs, a “Default Date”), then in addition
to any other rights may have hereunder or under applicable law, on the Default Date and on each monthly anniversary of such Default
Date (if the Registration Default shall not have been cured by such date) until the Registration Default is cured, BMRG shall pay
to Subscriber an amount in cash, as partial liquidated damages and not as a penalty (“Liquidated Damages”),
equal to 1.0% of the Purchase Price paid by Subscriber pursuant to this Subscription Agreement for any Subscribed Shares held by
Subscriber on the Default Date; provided, however, that if Subscriber fails to provide BMRG with any information
requested by BMRG that is required to be provided in such Registration Statement with respect to such Subscriber as set forth herein,
then, for purposes of this Section 7, the Effectiveness Deadline shall be extended until two (2) Business Days following the
date of receipt by BMRG of such required information from Subscriber; and in no event shall BMRG be required hereunder to pay to
such Subscriber pursuant to this Subscription Agreement an aggregate amount that exceeds 12.0% of the Purchase Price paid by Subscriber
for its Subscribed Shares. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion
of a month prior to the cure of a Registration Default, except in the case of the first Default Date. BMRG shall deliver the cash
payment to Subscriber with respect to any Liquidated Damages by the fifth Business Day after the date payable. If BMRG fails to
pay said cash payment to Subscriber in full by the fifth Business Day after the date payable, BMRG will pay interest thereon at
a rate of 5.0% per annum (or such lesser maximum amount that is permitted to be paid by applicable law, and calculated on the basis
of a year consisting of 360 days) to Subscriber, accruing daily from the date such Liquidated Damages are due until such amounts,
plus all such interest thereon, are paid in full. Notwithstanding the foregoing, nothing shall preclude Subscriber from pursuing
or obtaining any available remedies at law, specific performance or other equitable relief with respect to this Section 7
in accordance with applicable law.
(c) For as long as the
Registration Statement shall remain effective pursuant to the immediately preceding sentence, BMRG will file all reports, and provide
all customary and reasonable cooperation, necessary to enable the Subscriber to resell the Subscribed Shares pursuant to the Registration
Statement or Rule 144 of the Securities Act (when Rule 144 of the Securities Act becomes available to BMRG), as applicable, qualify
the Subscribed Shares for listing on the applicable stock exchange, and update or amend the Registration Statement as necessary
to include the Subscribed Shares. The Subscriber agrees to disclose its beneficial ownership, as determined in accordance with
Rule 13d-3 of the Exchange Act, of Subscribed Shares to BMRG (or its successor) upon request to assist BMRG in making the determination
described above. BMRG’s obligations to include the Subscribed Shares in the Registration Statement are contingent upon the
Subscriber furnishing in writing to BMRG such information regarding the Subscriber, the securities of BMRG held by the Subscriber
and the intended method of disposition of the Subscribed Shares as shall be reasonably requested by BMRG to effect the registration
of the Subscribed Shares, and shall execute such documents in connection with such registration as BMRG may reasonably request
that are customary of a selling stockholder in similar situations. The Subscriber shall not be entitled to use the Registration
Statement for an underwritten offering of Subscribed Shares. BMRG may delay filing or suspend the use of any such registration
statement if it determines that in order for the registration statement to not contain a material misstatement or omission, an
amendment thereto would be needed, or if such filing or use could materially affect a bona fide business or financing transaction
of BMRG or would require premature disclosure of information that could materially adversely affect BMRG (each such circumstance,
a “Suspension Event”); provided, that, (i) BMRG shall not so delay filing or so suspend the use of the Registration
Statement for a period of more than ninety (90) consecutive days or more than two (2) times in any three hundred sixty (360) day
period and (ii) BMRG shall use commercially reasonable efforts to make such registration statement available for the sale by the
Subscriber of such securities as soon as practicable thereafter. Upon receipt of any written notice from BMRG (which notice shall
not contain any material non-public information regarding BMRG) of the happening of any Suspension Event during the period that
the Registration Statement is effective or if as a result of a Suspension Event the Registration Statement or related prospectus
contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they were made (in the case of the prospectus) not misleading,
the Subscriber agrees that (i) it will immediately discontinue offers and sales of the Subscribed Shares under the Registration
Statement (excluding, for the avoidance of doubt, sales conducted pursuant to Rule 144) until the Subscriber receives copies of
a supplemental or amended prospectus (which BMRG agrees to promptly prepare) that corrects the misstatement(s) or omission(s) referred
to above and receives notice that any post-effective amendment has become effective or unless otherwise notified by BMRG that it
may resume such offers and sales, and (ii) it will maintain the confidentiality of any information included in such written notice
delivered by BMRG unless otherwise required by law or subpoena. If so directed by BMRG, the Subscriber will deliver to BMRG or,
in the Subscriber’s sole discretion destroy, all copies of the prospectus covering the Subscribed Shares in the Subscriber’s
possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus covering the Subscribed
Shares shall not apply (i) to the extent the Subscriber is required to retain a copy of such prospectus (a) in order to comply
with applicable legal, regulatory, self-regulatory or professional requirements or (b) in accordance with a bona fide pre-existing
document retention policy or (ii) to copies stored electronically on archival servers as a result of automatic data back-up.
(d) BMRG shall, notwithstanding
any termination of this Subscription Agreement, indemnify, defend and hold harmless the Subscriber (to the extent a seller under
the Registration Statement), the officers, directors, agents, partners, members, managers, stockholders, affiliates, employees
and investment advisers of the Subscriber, each person who controls the Subscriber (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers, stockholders, agents, affiliates,
employees and investment advisers of each such controlling person, to the fullest extent permitted by applicable law, from and
against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees)
and expenses (collectively, “Losses”) that arise out of or are based upon (i) any untrue or alleged untrue statement
of a material fact contained in the Registration Statement, any prospectus included in the Registration Statement or any form of
prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the
case of any prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not
misleading, or (ii) any violation or alleged violation by BMRG of the Securities Act, the Exchange Act or any state securities
law or any rule or regulation thereunder, in connection with the performance of its obligations under this Section 7, except
to the extent, but only to the extent, that such untrue statements, alleged untrue statements, omissions or alleged omissions are
based upon information regarding the Subscriber furnished in writing to BMRG by the Subscriber expressly for use therein. BMRG
shall notify the Subscriber promptly of the institution, threat or assertion of any proceeding arising from or in connection with
the transactions contemplated by this Section 7 of which BMRG is aware. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of an indemnified party and shall survive the transfer of the Subscribed Shares
by the Subscriber. Notwithstanding the forgoing, BMRG’s indemnification obligations shall not apply to amounts paid in settlement
of any Losses or action if such settlement is effected without the prior written consent of BMRG (which consent shall not be unreasonably
withheld or delayed).
(e) The Subscriber shall,
severally and not jointly with any other subscriber in this offering, indemnify and hold harmless BMRG, its directors, officers,
agents and employees, each person who controls BMRG (within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such controlling persons, to the fullest extent permitted by
applicable law, from and against all Losses arising out of or based upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, any prospectus included in the Registration Statement, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged
omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus,
or any form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading to the
extent, but only to the extent, that such untrue statements or omissions are based upon information regarding the Subscriber furnished
in writing to BMRG by the Subscriber expressly for use therein. In no event shall the liability of the Subscriber be greater in
amount than the dollar amount of the net proceeds received by the Subscriber upon the sale of the Subscribed Shares giving rise
to such indemnification obligation. The Subscriber shall notify BMRG promptly of the institution, threat or assertion of any proceeding
arising from or in connection with the transactions contemplated by this Section 7 of which the Subscriber is aware. Notwithstanding
the forgoing, the Subscriber’s indemnification obligations shall not apply to amounts paid in settlement of any Losses or
action if such settlement is effected without the prior written consent of the Subscriber (which consent shall not be unreasonably
withheld or delayed).
8. Termination.
This Subscription Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the
parties hereunder shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to
occur of (a) such date and time as the Business Combination Agreement is terminated in accordance with its terms and (b) upon the
mutual written agreement of each of the parties hereto to terminate this Subscription Agreement; provided that nothing herein
will relieve any party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled
to any remedies at law or in equity to recover losses, liabilities or damages arising from any such breach. BMRG shall promptly
notify the Subscriber of any termination of the Business Combination Agreement promptly after the termination thereof.
9. Additional
Agreements and Waivers of the Subscriber.
(a) The Subscriber hereby
acknowledges that BMRG has established a trust account (the “Trust Account”) containing the proceeds of the
IPO and from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon)
for the benefit of BMRG’s public stockholders and certain other parties (including the underwriters of the IPO). For and
in consideration of BMRG entering into this Subscription Agreement, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Subscriber hereby (i) agrees that it does not now and shall not at any time
hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account, and shall not make
any claim against the Trust Account, regardless of whether such claim arises as a result of, in connection with or relating in
any way to this Subscription Agreement or any other matter, and regardless of whether such claim arises based on contract, tort,
equity or any other theory of legal liability (any and all such claims are collectively referred to hereafter as the “Released
Claims”), (ii) irrevocably waives any Released Claims that it may have against the Trust Account now or in the future
as a result of, or arising out of, any negotiations, contracts or agreements with BMRG, and (iii) will not seek recourse against
the Trust Account for any reason whatsoever; provided however, that nothing in this Section 9(a) shall be deemed to limit
the Subscriber’s right to distributions from the Trust Account in accordance with BMRG’s amended and restated certificate
of incorporation in respect of Common Stock of BMRG acquired by any means other than pursuant to this Subscription Agreement.
(b) The Subscriber hereby
agrees that neither it, nor any person or entity acting on its behalf or pursuant to any understanding with it, shall execute any
short sales or engage in other hedging transactions of any kind with respect to securities of BMRG during the period of the date
of this Subscription Agreement through the Closing.
(c) Subscriber shall
pay all of its own expenses in connection with this Subscription Agreement and the transactions contemplated herein.
10. Miscellaneous.
(a) All notices and other
communications given or made pursuant to this Subscription Agreement shall be in writing and shall be deemed effectively given
upon the earlier of actual receipt, or (i) personal delivery to the party to be notified, (ii) when sent, if sent by electronic
mail or facsimile (if provided), during normal business hours of the recipient, and if not sent during normal business hours, then
on the recipient’s next Business Day, (iii) five (5) business days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) business day after deposit with a nationally recognized overnight courier,
freight prepaid, specifying next business day delivery, with written verification of receipt. All communications sent to BMRG shall
be sent to: 299 Park Avenue, 21st Floor, New York, New York 10171, Attn: Daniel Shribman, email: dshribman@brileyfin.com, with
a copy to BMRG’s counsel at: White & Case LLP, 1221 Avenue of the Americas, New York, New York 10020, Attn: Joel L. Rubinstein,
Esq., email: joel.rubinstein@whitecase.com.
All communications
to the Subscriber shall be sent to the Subscriber’s address as set forth on the signature page hereof, or to such e-mail
address, facsimile number (if any) or address as subsequently modified by written notice given in accordance with this Section
10(a).
(b) Neither this Subscription
Agreement nor any rights that may accrue to the Subscriber hereunder (other than the Subscribed Shares acquired hereunder, if any)
may be transferred or assigned. Neither this Subscription Agreement nor any rights that may accrue to BMRG or to any Placement
Agent may be transferred or assigned.
(c) BMRG may request
from the Subscriber such additional information as BMRG may deem necessary to evaluate the eligibility of the Subscriber to acquire
the Subscribed Shares, and the Subscriber shall provide such information as may reasonably be requested, to the extent readily
available and to the extent consistent with its internal policies and procedures.
(d) The Subscriber acknowledges
that BMRG and any Placement Agent will rely on the acknowledgments, understandings, agreements, representations and warranties
contained in this Subscription Agreement. Prior to the Closing, the Subscriber agrees to promptly notify BMRG if any of the acknowledgments,
understandings, agreements, representations and warranties set forth herein are no longer accurate in all material respects. The
Subscriber agrees that the purchase by the Subscriber of the Subscribed Shares from BMRG at the Closing will constitute a reaffirmation
of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such notice) by the
Subscriber as of the time of such purchase. The Subscriber further acknowledges and agrees that the Target and any Placement Agent
are third-party beneficiaries of the representations and warranties of the Subscriber contained in Section 6 of this Subscription
Agreement. BMRG acknowledges that the Subscriber will rely on the acknowledgments, understandings, agreements, representations
and warranties contained in this Subscription Agreement. Prior to the Closing, BMRG agrees to promptly notify the Subscriber if
any of the acknowledgements, understandings, agreements, representations and warranties set forth herein are no longer accurate
in all material respects. BMRG agrees that the sale by it of the Subscribed Shares to the Subscriber at the Closing will constitute
a reaffirmation of the acknowledgments, understandings, agreements, representations and warranties herein (as modified by any such
notice) by the Subscriber as of the time of such sale.
(e) Each of BMRG and
the Subscriber is entitled to rely upon this Subscription Agreement and is irrevocably authorized to produce this Subscription
Agreement or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to
the matters covered hereby.
(f) All the agreements,
representations and warranties made by each party hereto in this Subscription Agreement shall survive the Closing.
(g) This Subscription
Agreement may not be amended, modified, waived or terminated except by an instrument in writing, signed by the party against whom
enforcement of such amendment, modification, waiver, or termination is sought; provided, that, this Subscription Agreement may
be amended, modified, waived or terminated with the written consent of BMRG and the Subscribers then holding a majority of the
Collective Subscribed Shares then committed to be purchased at the Closing by (or, if after the Closing, then held by) all Subscribers
(the “Required Subscribers”). Upon the effectuation of such waiver, modification, amendment or termination with
the consent of the Required Subscribers in conformance with this Section 10(g), such amendment, modification, waiver or
termination shall be binding on all Subscribers and effective as to all of the Subscription Agreements. BMRG shall promptly give
written notice thereof to Subscriber if Subscriber has not previously consented to such amendment, modification, waiver or termination
in writing; provided that the failure to give such notice shall not affect the validity of such amendment, modification, waiver
or termination. Notwithstanding anything to the contrary herein, (i) no amendment, modification or waiver shall be effective against
any Subscriber unless such amendment, modification or waiver applies to all Subscribers equally, (ii) any amendment, modification
or waiver that has a disproportionate effect on a Subscriber (considered apart from any disproportionate effect owing to the number
of Subscribed Shares held by such Subscriber), shall require the consent of such Subscriber, (iii) any amendment to Section
5(h) or Section 7 of this Subscription Agreement shall require the consent of the undersigned Subscriber and (iv) any
amendment to Section 5, Section 10(d), this Section 10(g) and Section 11 may not be amended, terminated
or waived in a manner that is material and adverse to any Placement Agent without the written consent of such Placement Agent.
(h) This Subscription
Agreement constitutes the entire agreement, and supersedes all other prior agreements, understandings, representations and warranties,
both written and oral, among the parties, with respect to the subject matter hereof. Except as specifically set forth herein, this
Subscription Agreement shall not confer any rights or remedies upon any person other than the parties hereto, and their respective
permitted successor and assigns.
(i) Except as otherwise
provided herein, this Subscription Agreement shall be binding upon, and inure to the benefit of the parties hereto and their heirs,
executors, administrators, successors, legal representatives, and permitted assigns, and the agreements, representations, warranties,
covenants and acknowledgments contained herein shall be deemed to be made by, and be binding upon, such heirs, executors, administrators,
successors, legal representatives and permitted assigns.
(j) If any provision
of this Subscription Agreement shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining
provisions of this Subscription Agreement shall not in any way be affected or impaired thereby and shall continue in full force
and effect.
(k) This Subscription
Agreement may be executed and delivered in one or more counterparts (including by facsimile or electronic mail or in .pdf) and
by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All
counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(l) Except as otherwise
provided in Section 10(d) of this Subscription Agreement, this Subscription Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof
be enforced by, any other person.
(m) The parties hereto
agree that irreparable damage would occur in the event that any of the provisions of this Subscription Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Subscription Agreement and to enforce specifically the terms and provisions
of this Subscription Agreement, this being in addition to any other remedy to which such party is entitled at law, in equity, in
contract, in tort or otherwise.
(n) THIS SUBSCRIPTION
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES
OF CONFLICTS OF LAWS THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER STATE. THE PARTIES (I) HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMIT TO THE JURISDICTION OF THE STATE COURTS OF NEW YORK AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON
THIS SUBSCRIPTION AGREEMENT, (II) AGREE NOT TO COMMENCE ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS
SUBSCRIPTION AGREEMENT EXCEPT IN STATE COURTS OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND (III) HEREBY WAIVE, AND AGREE NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR
PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT
OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE
OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS SUBSCRIPTION AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED
IN OR BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS
SUBSCRIPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
(o) BMRG agrees that
it will not, without the prior written consent of the Subscriber, use in advertising or otherwise use publicly the name of the
Subscriber with respect to this Subscription Agreement; provided, however, that BMRG may identify the Subscriber
(i) as required by applicable law, rule or regulation, including as may be required in any securities filings made in connection
with the Business Combination and in the Registration Statement, (ii) in information and documents submitted to its stockholders
seeking required consents or waivers to transactions or other actions that require such consent or waiver, and (iii) other non-public
communications with third parties where disclosure of the capitalization of BMRG is required.
11. Exculpation.
The Subscriber agrees that no other subscriber for shares of Common Stock of BMRG in connection with the Business Combination,
nor any Placement Agent, shall be liable to the Subscriber for any action heretofore or hereafter taken or omitted to be taken
by any of them in connection therewith. BMRG agrees that the Subscriber shall not be liable for any action taken or omitted to
be taken by any other subscriber of shares of Common Stock in connection with the Business Combination.
[Signature Pages Follow]
IN WITNESS WHEREOF,
each of BMRG and Subscriber has executed or caused this Subscription Agreement to be executed by its duly authorized representative
as of the date first set forth above.
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B. RILEY PRINCIPAL MERGER CORP. II
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By:
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Name:
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Title:
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[Signature Page to BMRG Subscription
Agreement]
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SUBSCRIBER:
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Print Name:
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By:
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Name:
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Title:
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Name in which shares are to be registered
(if different): _________________________
Number of Subscribed Shares subscribed for:
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_____________________
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Price Per Subscribed Share:
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$10.00
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Aggregate Purchase Price:
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$____________________
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[Signature Page to BMRG Subscription
Agreement]
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE SUBSCRIBER
This Schedule A must be completed
and signed by the Subscriber and constitutes part of the Subscription Agreement
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A.
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ACCREDITED INVESTOR STATUS
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(Please check the applicable boxes):
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o
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The Subscriber is an “accredited
investor” within the meaning of Rule 501(a) under the Securities Act for one or more of the following reasons:
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o
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The Subscriber is a bank, as defined in Section 3(a)(2) of the Securities Act or any savings and loan association or other institution as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in an individual or a fiduciary capacity.
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o
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The Subscriber is a broker or dealer registered under Section 15 of the Securities Exchange Act of 1934, as amended.
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o
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The Subscriber is an insurance company, as defined in Section 2(13) of the Securities Act.
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o
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The Subscriber is an investment company registered under the Investment Company Act of 1940 or a business development company, as defined in Section 2(a)(48) of that act.
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o
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The Subscriber is a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958.
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o
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The Subscriber is a plan established and maintained by a state, its political subdivisions or any agency or instrumentality of a state or its political subdivisions for the benefit of its employees, if the plan has total assets in excess of $5 million.
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o
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The Subscriber is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, if the investment decision is being made by a plan fiduciary, as defined in Section 3(21) of such act, and the plan fiduciary is either a bank, an insurance company, or a registered investment adviser, or if the employee benefit plan has total assets in excess of $5 million.
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o
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The Subscriber is a private business development company, as defined in Section 202(a)(22) of the Investment Advisers Act of 1940.
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o
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The Subscriber is a corporation, Massachusetts or similar business trust, limited liability company, or partnership, or an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, that was not formed for the specific purpose of acquiring the Securities, and that has total assets in excess of $5 million.
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o
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The Subscriber is a trust with total assets in excess of $5 million not formed for the specific purpose of acquiring the Securities, whose purchase is directed by a sophisticated person as described in Rule 506(b)(2)(ii) under the Securities Act.
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o
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The Subscriber is a director or executive officer of BMRG.
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o
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The Subscriber is a natural person whose individual net worth, or joint net worth with that person’s spouse, at the time of his or her purchase exceeds $1,000,000. For purposes of calculating a natural person’s net worth: (a) the person’s primary residence must not be included as an asset; (b) indebtedness secured by the person’s primary residence up to the estimated fair market value of the primary residence must not be included as a liability (except that if the amount of such indebtedness outstanding at the time of calculation exceeds the amount outstanding 60 days before such time, other than as a result of the acquisition of the primary residence, the amount of such excess must be included as a liability); and (c) indebtedness that is secured by the person’s primary residence in excess of the estimated fair market value of the residence must be included as a liability.
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o
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The Subscriber is a natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person’s spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year.
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o
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The Subscriber is an entity
in which all of the equity owners are accredited investors meeting one or more of the above tests.
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(Please check the applicable box)
The Subscriber:
an “affiliate” (as defined in Rule 144
under the Securities Act) of BMRG or acting on behalf of an affiliate of BMRG.
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SUBSCRIBER:
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Print Name:
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By:
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Name:
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Title:
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Exhibit 10.8
B. Riley Principal Merger Corp. II
299 Park Avenue
21st Floor
New York, New York 10171
November 16, 2020
B. Riley Principal Sponsor Co. II, LLC
299 Park Avenue
21st Floor
New York, New York 10171
Re: Earn Out
Dear Sir/Madam:
Reference is hereby made to (i) that certain
Agreement and Plan of Merger, dated as of September 7, 2020 (the “Merger Agreement”), by and among B. Riley
Principal Merger Corp. II, a Delaware corporation (“Parent”), BMRG Merger Sub, LLC, a Delaware limited liability
company, BMRG Merger Sub II, LLC, a Delaware limited liability company, Eos Energy Storage LLC, a Delaware limited liability company
(the “Company”), and the other parties thereto, and (ii) that certain letter agreement, dated as of May 19,
2020 (the “Insider Letter”), by and among Parent, B. Riley FBR, Inc., and B. Riley Principal Sponsor Co. II,
LLC, a Delaware limited liability company (“Sponsor”). Capitalized terms used herein but not otherwise defined
shall have the respective meanings given to such terms in the Merger Agreement, except that “Transfer” and “Permitted
Transferee” shall have the meaning given to such term in the Insider Letter.
Prior to the consummation of the actions
contemplated by the Merger Agreement, Sponsor owns 4,295,000 shares of Class B common stock of Parent (the “Sponsor Class
B Shares”). At the Closing, the Sponsor Class B Shares will be converted into an equal number of common shares of Parent
(“Parent Shares”, and such 4,295,000 Parent Shares owned by Sponsor after giving effect to such conversion,
the “Sponsor Shares”).
In connection with the Closing, the parties
hereby agree that 1,718,000 Sponsor Shares (the “Earn Out Shares”) will be subject to certain restrictions as
follows:
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1.
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Following the Closing, Sponsor shall not Transfer (other than a Transfer
to a Permitted Transferee that has entered into a written agreement with Parent agreeing to be bound by the transfer restrictions
herein) a block of 859,000 Sponsor Shares (the “Block A Sponsor Shares”) unless and until either (i) the closing
share price of Parent Shares on the principal securities exchange or securities market on which the Parent Shares are then traded
equals or exceeds $12.00 per share for any 20 trading days within any consecutive 30-trading day period during the Earn Out Period
(as defined below) or (ii) a Change of Control (or a definitive agreement providing for a Change of Control having been entered
into) during the Earn Out Period (each of clauses (i) and (ii), a “Block A Triggering Event”), unless, in the
case of a Block A Triggering Event that is a Change of Control, the value of the consideration to be received by the holders of
the Parent Shares in such Change of Control transaction is less than $12.00 per share. If a Block A Triggering Event does not occur
during the period from (and excluding) the Closing Date to (and including) the day that is the fifth anniversary of the Closing
Date (the “Earn Out Period”), the Block A Sponsor Shares shall be automatically forfeited and cancelled for
no consideration.
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2.
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Following the Closing, Sponsor shall not Transfer (other than a Transfer
to a Permitted Transferee that has entered into a written agreement with Parent agreeing to be bound by the transfer restrictions
herein) an additional block of 859,000 Sponsor Shares (the “Block B Sponsor Shares”) unless and until either
(i) the closing share price of Parent Shares on the principal securities exchange or securities market on which the Parent Shares
are then traded equals or exceeds $16.00 per share for any 20 trading days within any consecutive 30-trading day period during
the Earn Out Period or (ii) a Change of Control (or a definitive agreement providing for a Change of Control having been entered
into) during the Earn Out Period (each of clauses (i) and (ii), a “Block B Triggering Event”, and together with
a Block A Triggering Event, a “Triggering Event”), unless, in the case of a Block B Triggering Event that is
a Change of Control, the value of the consideration to be received by the holders of the Parent Shares in such Change of Control
transaction is less than $16.00 per share. If a Block B Triggering Event does not occur during the Earn Out Period, the Block B
Sponsor Shares shall be automatically forfeited and cancelled for no consideration.
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3.
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Notwithstanding the foregoing or anything else herein to the contrary,
if Parent shall, at any time or from time to time, after the date of the Merger Agreement effect a stock split, reverse stock split,
stock dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other similar change or
transaction affecting the outstanding Parent Shares, the numbers of Block A Sponsor Shares and Block B Sponsor Shares subject to
the restrictions set forth in, and the stock price targets set forth in, paragraphs 1 and 2, shall be equitably adjusted for such
stock split, reverse stock split, stock dividend, reorganization, recapitalization, reclassification, combination, exchange of
shares or other similar change or transaction. Any adjustment under this paragraph 3 shall become effective at the close of business
on the date the stock split, reverse stock split, stock dividend, reorganization, recapitalization, reclassification, combination,
exchange of shares or other similar change or transaction becomes effective.
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4.
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Any dividends or distributions payable with respect to the Block
A Sponsor Shares or Block B Sponsor Shares during the Earn Out Period shall be paid into escrow by Parent. If a Block A Triggering
Event or Block B Triggering Event occurs, the funds held in escrow (including any interest and investment income accrued thereon)
in respect of the Block A Sponsor Shares and/or Block B Sponsor Shares, as applicable, shall be immediately disbursed in immediately
available funds in U.S. dollars to an account specified in writing by Sponsor. If a Block A Triggering Event or a Block B Triggering
Event does not occur during the Earn Out Period, the funds held in escrow (including any interest and investment income accrued
thereon) in respect of the Block A Sponsor Shares or Block B Sponsor Shares, as applicable, shall be immediately disbursed in immediately
available funds in U.S. dollars to an account specified in writing by Parent. The parties hereto agree that Sponsor and the Permitted
Transferees to whom Sponsor Shares are Transferred shall be treated as the owners of the funds held in escrow for income tax purposes
(in proportion to their ownership percentages) and will report all income, if any, that is earned on, or derived from, the funds
held in escrow as income of Sponsor and such Permitted Transferees (in proportion to their ownership percentages), as applicable,
in the taxable year in which such income is properly includable. Parent shall issue an IRS Form 1099 (or a similar form or notice)
relating to such taxable income to and in the name of Sponsor and the Permitted Transferees to whom Sponsor Shares are Transferred
until the termination of the escrow arrangement set forth in this paragraph 4. In order to permit Sponsor (or its direct or indirect
beneficial owners) and the Permitted Transferees to whom Sponsor Shares are Transferred to satisfy their respective tax obligations
with respect to such taxable income, Parent shall deliver to Sponsor and such Permitted Transferees an amount equal to 30% of the
amount of such taxable income (“Tax Distribution”) (in proportion to their ownership percentages) during the
period covered by and included on any Form 1099 (or similar form or notice) delivered to Sponsor and such Permitted Transferees.
Payment of such Tax Distribution shall be made from the funds held in escrow solely to the extent of available funds.
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5.
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Notwithstanding anything to the contrary set forth herein, Sponsor
or any Permitted Transferee of the Sponsor Shares may exercise all of its existing rights, powers and privileges with respect to
the Sponsor Shares other than the Earn Out Shares to the extent specifically set forth herein.
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6.
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In the event of any Transfer to any Permitted Transferee, the Sponsor
and such Permitted Transferee will be jointly and severally responsible for any violation of the transfer restrictions herein by
such Permitted Transferee.
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The parties hereto
hereby agree that the provisions and obligations set forth in Sections 8.03 (Assignment), 8.04 (Severability), 8.06 (Entire Agreement),
8.07 (Counterparts; Electronic Delivery) and 8.08 (Governing Law; Waiver of Jury Trial; Jurisdiction) of the Merger Agreement shall
apply, mutatis mutandis, to this letter agreement.
[Signature page follows]
Sincerely,
B. RILEY PRINCIPAL MERGER
CORP. II
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By:
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/s/ Daniel Shribman
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Name:
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Daniel Shribman
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Title:
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Chief Executive Officer and Chief Financial Officer
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Acknowledged and Agreed:
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B. RILEY PRINCIPAL SPONSOR CO. II, LLC
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By:
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/s/ Kenneth Young
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Name:
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Kenneth Young
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Title:
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Chief Executive Officer
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[Signature Page to Letter Agreement]
Exhibit 10.9
REGISTRATION
RIGHTS AGREEMENT
This Registration Rights
Agreement (this “Agreement”) is made as of November, 16, 2020 by and among Eos Energy Enterprises, Inc., a Delaware
corporation (the “Company”), each of the other persons listed on the signature pages hereto (each, a “Securityholder”
and collectively, the “Securityholders”), and any person or entity who hereafter becomes a party to this Agreement
pursuant to Section 6.2 of this Agreement (together with the Securityholders, each a “Holder” and, collectively,
the “Holders”).
RECITALS
WHEREAS, this Agreement
is made and entered into in connection with the closing of the business combination (the “Business Combination”)
contemplated by that certain Agreement and Plan of Merger, dated as of September 7, 2020 (the “Merger Agreement”),
by and among the Company, BMRG Merger Sub, LLC, a Delaware limited liability company, BMRG Merger Sub II, LLC, a Delaware limited
liability company, Eos Energy Storage LLC, a Delaware limited liability company, New Eos Energy LLC, a Delaware limited liability
company, and AltEnergy Storage VI, LLC, a Delaware limited liability company (“AltEnergy Demanding Holder”),
in its capacity as the Securityholder Representative thereunder;
WHEREAS, pursuant to
the Merger Agreement, the Company will issue to the Securityholders and other Holders shares of common stock of the Company, par
value $0.0001 per share (the “Common Stock”), as consideration in the Business Combination;
WHEREAS, pursuant to
the Merger Agreement, the Company agreed to register for resale under the Securities Act the shares of Common Stock issued to the
Securityholders and other Holders; and
WHEREAS, the Company
and the Holders desire to enter into this Agreement, pursuant to which the Company shall grant the Holders certain registration
rights with respect to certain securities of the Company, and the parties hereto shall set forth their agreement with respect to
certain other matters, as set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in
consideration of the representations, covenants and agreements contained herein, and certain other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
Article
I
DEFINITIONS
Section 1.1 Definitions.
The terms defined in this Article I shall, for all purposes of this Agreement, have the respective meanings set forth below:
“Adverse Disclosure”
shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief
Executive Officer or principal financial officer of the Company (if not Joe Mastrangelo), after consultation with counsel to the
Company, (a) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration
Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances
under which they were made) not misleading, (b) would not be required to be made at such time if the Registration Statement were
not being filed, and (c) the Company has a bona fide business purpose for not making such information public.
“Affiliate”
shall mean, with respect to any specified Holder, any person or entity who directly or indirectly, controls, is controlled by or
is under common control with such Holder, including, without limitation, any general partner, managing member, officer, director
or trustee of such Holder, or any investment fund or registered investment company now or hereafter existing which is controlled
by one or more general partners, managing members or investment advisers of, or shares the same management company or investment
adviser with, such Holder.
“Agreement”
shall have the meaning given in the Preamble.
“AltEnergy
Demanding Holder” shall have the meaning given in the Recitals.
“Blackout
Period” shall have the meaning given in Section 3.4(b).
“Business
Combination” shall have the meaning given in the Preamble.
“Business
Day” shall mean any day of the year on which national banking institutions in New York are open to the public for conducting
business and are not required or authorized to close.
“Closing Date”
shall have the meaning given in the Merger Agreement.
“Common Stock”
shall have the meaning given in the Preamble.
“Commission”
shall mean the U.S. Securities and Exchange Commission.
“Company”
shall have the meaning given in the Preamble.
“Demanding
Holder” shall have the meaning given in Section 2.2(a).
“Effectiveness
Deadline” shall have the meaning given in Section 2.1.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.
“Form S-3”
shall have the meaning given in Section 2.4.
“Founder Holders”
shall mean “Holders” as defined in the Founder Registration Rights Agreement.
“Founder Registrable
Securities” shall mean “Registrable Securities” as defined in the Founder Registration Rights Agreement
“Founder Registration
Rights Agreement” shall mean that certain Registration Rights Agreement, dated as of May 19, 2020, by and between the
Company, B. Riley Principal Sponsor Co. II, LLC, a Delaware limited liability company, and the other parties thereto.
“Holders”
shall have the meaning given in the Preamble.
“Lock-Up Period”
shall mean the period ending on the earlier of (A) one year after the Closing Date or (B) subsequent to the Closing Date, (x) if
the last sale price of the Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations,
recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after the
Closing Date or (y) the date on which the Company completes a liquidation, merger, capital stock exchange, reorganization or other
similar transaction that results in all of the Company’s stockholders having the right to exchange their shares of Common
Stock for cash, securities or other property.
“Maximum Number
of Securities” shall have the meaning given in Section 2.2(b).
“Merger Agreement”
shall have the meaning given in the Recitals.
“Misstatement”
shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration
Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus in the light of the circumstances
under which they were made not misleading.
“Permitted Transferees”
shall mean any person or entity to whom a Holder of Registrable Securities is permitted to transfer such Registrable Securities
prior to the expiration of the Lock-up Period or any other lock-up period, as the case may be, under this Agreement and any other
applicable agreement between such Holder and the Company, and to any transferee thereafter.
“Piggyback
Registration” shall have the meaning given in Section 2.3.
“Prospectus”
shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as
amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.
“Registrable
Security” shall mean (a) the shares of Common Stock issued by the Company to the Securityholders and any other Holders
pursuant to the Merger Agreement and (b) any other equity security of the Company issued or issuable to any Holder with respect
to any such shares of Common Stock by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Security, such
securities shall cease to be Registrable Securities when: (i) a Registration Statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged
in accordance with such Registration Statement; (ii) such securities shall have been otherwise transferred, new certificates for
such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public
distribution of such securities shall not require registration under the Securities Act; (iii) such securities shall have ceased
to be outstanding; (iv) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities
Act (or any successor rule promulgated thereafter by the Commission) (but with no volume or other restrictions or limitations);
or (v) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public
securities transaction.
“Registration”
shall mean a registration effected by preparing and filing a registration statement or similar document in compliance with the
requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement
becoming effective.
“Registration
Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:
(a) all
registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory
Authority, Inc.) and any securities exchange on which the Common Stock is then listed;
(b) fees
and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel for the Underwriters
in connection with blue sky qualifications of Registrable Securities);
(c) printing,
messenger, telephone and delivery expenses;
(d) reasonable
fees and disbursements of counsel for the Company;
(e) reasonable
fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with
such Registration (including the expenses of any special audit and “comfort letters” required by or incident to such
performance); and
(f) reasonable
fees and expenses of one legal counsel selected by the Demanding Holders in connection with an Underwritten Offering.
“Registration
Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments)
and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration
statement.
“Securities
Act” shall mean the Securities Act of 1933, as amended from time to time.
“Suspension
Period” shall have the meaning given in Section 3.4(a).
“Transfer”
shall mean the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase
or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position
or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act,
and the rules and regulations of the Commission promulgated thereunder with respect to, any security, (b) entry into any swap or
other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security,
whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement
of any intention to effect any transaction specified in clause (a) or (b).
“Underwriter”
shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part
of such dealer’s market-making activities.
“Underwritten
Offering” shall mean an offering in which securities of the Company are sold to an Underwriter in a firm commitment underwriting
for distribution to the public.
Article
II
REGISTRATIONS
Section 2.1 Registration
Statement. The Company shall, as soon as practicable after the Closing Date, but in any event within forty-five (45) days
after the Closing Date, file a Registration Statement under the Securities Act to permit the public resale of all the Registrable
Securities held by the Holders from time to time as permitted by Rule 415 under the Securities Act (or any successor or similar
provision adopted by the Commission then in effect) on the terms and conditions specified in this Section 2.1 and shall
use its commercially reasonable efforts to cause such Registration Statement to be declared effective as soon as practicable after
the filing thereof, but in any event no later than the earlier of (a) sixty (60) days (or ninety (90) days
if the Commission notifies the Company that it will “review” the Registration Statement) after the Closing Date and
(b) the tenth (10th) Business Day after the date the Company is notified (orally or in writing, whichever is earlier)
by the Commission that such Registration Statement will not be “reviewed” or will not be subject to further review
(such earlier date, the “Effectiveness Deadline”). The Registration Statement filed with the Commission pursuant
to this Section 2.1 shall be on Form S-1 or such other form of registration statement as is then available to effect a registration
for resale of such Registrable Securities, covering such Registrable Securities, and shall contain a Prospectus in such form as
to permit any Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or
similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement.
A Registration Statement filed pursuant to this Section 2.1 shall provide for the resale pursuant to any method or combination
of methods legally available to, and requested by, the Holders. The Company shall use its commercially reasonable efforts to cause
a Registration Statement filed pursuant to this Section 2.1 to remain effective, and to be supplemented and amended to the
extent necessary to ensure that such Registration Statement is available or, if not available, that another registration statement
is available, for the resale of all the Registrable Securities held by the Holders until all such Registrable Securities have ceased
to be Registrable Securities. As soon as practicable following the effective date of a Registration Statement filed pursuant to
this Section 2.1, but in any event within three (3) Business Days of such date, the Company shall notify the Holders
of the effectiveness of such Registration Statement. When effective, a Registration Statement filed pursuant to this Section
2.1 (including any documents incorporated therein by reference) will comply as to form in all material respects with all applicable
requirements of the Securities Act and the Exchange Act 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 (in the case of
any Prospectus contained in such Registration Statement, in the light of the circumstances under which such statement is made).
Section 2.2 Underwritten
Offering.
(a) In the event
that any Holder elects to dispose of Registrable Securities under a Registration Statement pursuant to an Underwritten Offering
of all or part of such Registrable Securities that are registered by such Registration Statement, then the Company shall, upon
the written demand of AltEnergy Demanding Holder or its designee (any such Holder, a “Demanding Holder”), enter
into an underwriting agreement in a form as is customary in Underwritten Offerings of equity securities with the managing Underwriter
or Underwriters selected by the Demanding Holder in consultation with the Company, and shall take all such other reasonable actions
as are requested by the managing Underwriter or Underwriters in order to expedite or facilitate the disposition of such Registrable
Securities. Such underwriting agreement shall be satisfactory in form and substance to the Company and the Demanding Holder. In
addition, the Company shall give prompt written notice to each other Holder regarding such proposed Underwritten Offering, and
such notice shall offer such Holders the opportunity to include in the Underwritten Offering such number of Registrable Securities
as each such Holder may request. Each such Holder shall make such request in writing to the Company within five Business Days after
the receipt of any such notice from the Company, which request shall specify the number of Registrable Securities intended to be
disposed of by such Holder.
(b) If the managing
Underwriter or Underwriters in an Underwritten Offering, in good faith, advises the Company and the Demanding Holder that the dollar
amount or number of Registrable Securities that the Demanding Holder desires to sell, taken together with all other shares of Common
Stock or other equity securities that the Company or any other Holder desires to sell and the shares of Common Stock, if any, as
to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any
other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold
in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the
probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum
Number of Securities”), then the Company shall include in such Underwritten Offering, as follows:
(i) first,
pro rata to (A) Registrable Securities of the Holders (including the Demanding Holders) who have elected to participate
in the Underwritten Offering pursuant to Section 2.2(a) and (B) Founder Registrable Securities of Founder Holders exercising
their rights to register their Founder Registrable Securities pursuant to the Founder Registration Rights Agreement, which can
be sold without exceeding the Maximum Number of Securities;
(ii) second,
to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), to shares
of Common Stock held by persons or entities that the Company is obligated to register in a Registration pursuant to separate written
contractual arrangements with such persons, which collectively can be sold without exceeding the Maximum Number of Securities;
and
(iii) third,
to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i) or clause (ii),
shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum
Number of Securities.
(c) A Demanding
Holder shall have the right to withdraw all or any portion of its Registrable Securities included in an Underwritten Offering pursuant
to this Section 2.2 for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters
of its intention to withdraw from such Underwritten Offering prior to the pricing of such Underwritten Offering and such withdrawn
amount shall no longer be considered an Underwritten Offering. Notwithstanding anything to the contrary in this Agreement, the
Company shall be responsible for the Registration Expenses incurred in connection with an Underwritten Offering prior to its withdrawal
under this Section 2.2(c).
(d) The Company
shall not be obligated to effect any Underwritten Offering pursuant to this Section 2.2 (x) if the Demanding Holder, together
with the holders of any other securities of the Company entitled to inclusion in such Underwritten Offering, propose to sell Registrable
Securities and such other securities (if any), the aggregate proceeds of which are anticipated to be less than $15,000,000, or
(y) in any particular jurisdiction in which the Company would be required to execute a general consent to service of process in
effecting such registration, qualification, or compliance, unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act.
Section 2.3 Piggyback
Registration.
(a) If at any time
the Company proposes to file a Registration Statement under the Securities Act with respect to an Underwritten Offering of equity
securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its
own account or for the account of stockholders of the Company (or by the Company and by the stockholders of the Company including,
without limitation, pursuant to Section 2.2 hereof) on a form that would permit registration of Registrable Securities,
other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange
offer or offering of securities solely to the Company’s existing stockholders, (iii) for an offering of debt that is convertible
into equity securities of the Company, (iv) for a dividend reinvestment plan or (v) on Form S-4, then the Company shall give written
notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than ten days
before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities
to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters,
if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of
such number of Registrable Securities as such Holders may request in writing within five days after receipt of such written notice
(in the case of an “overnight” or “bought” offering, such requests must be made by the Holders within three
Business Days after the delivery of any such notice by the Company) (such Registration a “Piggyback Registration”);
provided, however, that if the Company has been advised in writing by the managing Underwriter(s) that the inclusion
of Registrable Securities for sale for the benefit of the Holders will have an adverse effect on the price, timing or distribution
of the Common Stock in the Underwritten Offering, then (1) if no Registrable Securities can be included in the Underwritten Offering
in the opinion of the managing Underwriter(s), the Company shall not be required to offer such opportunity to the Holders or (2)
if any Registrable Securities can be included in the Underwritten Offering in the opinion of the managing Underwriter(s), then
the amount of Registrable Securities to be offered for the accounts of Holders shall be determined based on the provisions of Section
2.3(b). Subject to Section 2.3(b), the Company shall, in good faith, cause such Registrable Securities to be included
in such Piggyback Registration and shall use its commercially reasonable efforts to cause the managing Underwriter or Underwriters
of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this Section 2.3
to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company included in
such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s)
of distribution thereof. If no written request for inclusion from a Holder is received within the specified time, each such Holder
shall have no further right to participate in such Underwritten Offering. All such Holders proposing to distribute their Registrable
Securities through an Underwritten Offering under this Section 2.3 shall enter into an underwriting agreement in customary
form with the Underwriter(s) selected for such Underwritten Offering by the Company.
(b) If the managing
Underwriter or Underwriters in an Underwritten Offering that is to be a Piggyback Registration, in good faith, advises the Company
and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number
of shares of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, if any, as to which
Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holders
of Registrable Securities hereunder, (ii) the Registrable Securities as to which registration has been requested pursuant to Sections 2.2
and 2.3, and (iii) the shares of Common Stock, if any, as to which Registration has been requested pursuant to separate
written contractual piggy-back registration rights of other stockholders of the Company, exceeds the Maximum Number of Securities,
then:
(i) If
the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first,
shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum
Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing
clause (A), pro rata to (1) the Registrable Securities of Holders exercising their rights to register their
Registrable Securities pursuant to Sections 2.2 and 2.3 hereof; and (2) the Founder Registrable Securities of
Founder Holders exercising their rights to register their Founder Registrable Securities pursuant to the Founder Registration Rights
Agreement, which can be sold without exceeding the Maximum Number of Securities, and (C) third, to the extent that the Maximum
Number of Securities has not been reached under the foregoing clauses (A) and (B), shares of Common Stock, if
any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other stockholders
of the Company, which can be sold without exceeding the Maximum Number of Securities;
(ii) If
the Registration is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company
shall include in any such Registration (A) first, shares of Common Stock or other equity securities, if any, of such requesting
persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of
Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A),
pro rata to (1) the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant
to Sections 2.2 and 2.3 hereof; and (2) the Founder Registrable Securities of Founder Holders exercising their
rights to register their Founder Registrable Securities pursuant to the Founder Registration Rights Agreement, which can be sold
without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not
been reached under the foregoing clauses (A) and (B), shares of Common Stock or other equity securities that
the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the
extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C),
shares of Common Stock or other equity securities for the account of other persons or entities that the Company is obligated to
register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding
the Maximum Number of Securities.
(c) Any Holder of
Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written
notification to the Company and the Underwriter or Underwriters (if any) of its intention to withdraw from such Piggyback Registration
prior to the pricing of such Underwritten Offering. The Company (whether on its own good faith determination or as the result of
a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement
filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration
Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses
incurred in connection with the Piggyback Registration prior to its withdrawal under this Section 2.3.
(d) For purposes
of clarity, any Registration effected pursuant to Section 2.3 hereof shall not be counted as a Registration effected under
Section 2.2 hereof.
Section 2.4 Registrations
on Form S-3. The Holders of Registrable Securities may at any time, and from time to time, request in writing that the Company,
pursuant to Rule 415 under the Securities Act (or any successor rule promulgated thereafter by the Commission), register the
resale of any or all of their Registrable Securities on Form S-3 or similar short form registration statement that may be available
at such time (“Form S-3”); provided, however, that the Company shall not be obligated to
effect such request through an Underwritten Offering. Within five days of the Company’s receipt of a written request from
a Holder or Holders of Registrable Securities for a Registration on Form S-3, the Company shall promptly give written notice of
the proposed Registration on Form S-3 to all other Holders of Registrable Securities, and each Holder of Registrable Securities
who thereafter wishes to include all or a portion of such Holder’s Registrable Securities in such Registration on Form S-3
shall so notify the Company, in writing, within ten days after the receipt by the Holder of the notice from the Company. As soon
as practicable thereafter, but not more than 12 days after the Company’s initial receipt of such written request for
a Registration on Form S-3, the Company shall register all or such portion of such Holder’s Registrable Securities as are
specified in such written request, together with all or such portion of Registrable Securities of any other Holder or Holders joining
in such request as are specified in the written notification given by such Holder or Holders; provided, however,
that the Company shall not be obligated to effect any such Registration pursuant to Section 2.3 hereof if (i) a Form S-3
is not available for such offering, or (ii) the Holders of Registrable Securities, together with the Holders of any other equity
securities of the Company entitled to inclusion in such Registration, propose to sell the Registrable Securities and such other
equity securities (if any) at any aggregate price to the public of less than $10,000,000.
Article
III
COMPANY PROCEDURES
Section 3.1 General
Procedures. The Company shall use its commercially reasonable efforts to effect the Registration of Registrable Securities
in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as practicable:
(a) subject to Section
2.1, prepare and file with the Commission a Registration Statement with respect to such Registrable Securities and use its
commercially reasonable efforts to cause such Registration Statement to become effective and remain effective pursuant to the terms
of this Agreement until all of such Registrable Securities have been disposed of;
(b) prepare and
file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the
Prospectus, as may be required by the rules, regulations or instructions applicable to the registration form used by the Company
or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all of such Registrable
Securities have been disposed of in accordance with the intended plan of distribution set forth in such Registration Statement
or supplement to the Prospectus;
(c) prior to filing
a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if
any, and the Holders of Registrable Securities included in such Registration, and to one legal counsel selected by the Holders,
copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in
each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable
Securities included in such Registration or the legal counsel selected by such Holders may request in order to facilitate the disposition
of the Registrable Securities owned by such Holders;
(d) prior to any
public offering of Registrable Securities, use its commercially reasonable efforts to (i) register or qualify the Registrable Securities
covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United
States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution)
may request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations
of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable
Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions;
provided, however, that the Company shall not be required to qualify generally to do business or as a dealer in securities
in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general
service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
(e) use its commercially
reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange or automated quotation system
on which similar securities issued by the Company are then listed;
(f) provide a transfer
agent and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
(g) advise each
seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any
stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any
proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued;
(h) at least five
days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement
or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a
copy thereof to each seller of such Registrable Securities or its counsel;
(i) notify the Holders
at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of
the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes
a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
(j) permit a representative
of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate,
at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers,
directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant
in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality
agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
(k) obtain a “cold
comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Offering,
in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing
Underwriter may reasonably request;
(l) on the date
the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated as of such date, of counsel
representing the Company for the purposes of such Registration, addressed to the placement agent or sales agent, if any, and the
Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given
as are customarily included in such opinions and negative assurance letters;
(m) in the event
of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, on terms agreed to by the
Company with the managing Underwriter of such offering;
(n) make available
to its security holders, as soon as reasonably practicable, an earnings statement (which need not be audited) covering the period
of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after
the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
(o) if the Registration
involves the Registration of Registrable Securities involving gross proceeds in excess of $30,000,000, use its reasonable efforts
to make available senior executives of the Company to participate in customary “road show” presentations that may be
reasonably requested by the Underwriter in such Underwritten Offering; and
(p) otherwise, in
good faith, take such customary actions necessary to effect the registration of such Registrable Securities contemplated hereby.
Section 3.2 Registration
Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders and
the Company that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as
Underwriters’ commissions and discounts, brokerage fees and, other than as set forth in the definition of “Registration
Expenses,” all reasonable fees and expenses of any legal counsel representing the Holders.
Section 3.3 Requirements
for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of
the Company hereunder unless such person (a) agrees to sell such person’s securities on the basis provided in the underwriting
agreement for such Underwritten Offering and (b) completes and executes all customary questionnaires, powers of attorney, indemnities,
lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such
underwriting agreement. Each Holder proposing to distribute its Registrable Securities through an Underwritten Offering for equity
securities of the Company hereunder shall enter into an underwriting agreement with the underwriters, which underwriting agreement
shall contain such representations, covenants, indemnities (subject to Article IV) and other rights and obligations as are
customary in underwritten offerings of equity securities; provided, however, that no such Holder shall be required to make any
representations or warranties to or agreements with the Company or the Underwriters other than representations, warranties or agreements
regarding such Holder’s authority to enter into such underwriting agreement and to sell, and its ownership of, the securities
being registered on its behalf, its intended method of distribution and any other representation required by law.
Section 3.4 Suspension
of Sales; Adverse Disclosure.
(a) Upon receipt
of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall
forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus
correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment
as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus
may be resumed (any such period, a “Suspension Period”).
(b) If the filing,
initial effectiveness or continued use of a Registration Statement in respect of any Registration (including in connection with
an Underwritten Offering) at any time would require the Company to make an Adverse Disclosure or would require the inclusion in
such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s
control, then the Company may, upon giving prompt written notice to the Holders, delay the filing or initial effectiveness of,
or suspend use of, such Registration Statement (including in connection with an Underwritten Offering) for the shortest period
of time, but in no event more than 30 days, determined in good faith by the Company to be necessary for such purpose (any
such period, a “Blackout Period”). In the event the Company exercises its rights under the preceding sentence,
the Holders agree to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating
to any Registration in connection with any sale or offer to sell Registrable Securities.
(c) The Company
shall immediately notify the Holders of the expiration of any period during which it exercised its rights under this Section
3.4. Notwithstanding anything to the contrary in this Section 3.4, in no event shall any Suspension Period or any Blackout
Period continue for more than 30 days in the aggregate during any 365-day period.
Section 3.5 Reporting
Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting
company under the Exchange Act, covenants to:
(a) file timely
(or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company
after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true
and complete copies of all such filings (the delivery of which will be satisfied by the Company’s filing of such reports
on the Commission’s EDGAR system); and
(b) the Company
further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from
time to time to enable such Holder to sell shares of Common Stock held by such Holder without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule
promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of any Holder, the Company
shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
Article
IV
INDEMNIFICATION AND CONTRIBUTION
Section 4.1 Indemnification.
(a) The Company
agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and each
person who controls (within the meaning of the Securities Act) such Holder (and the directors and officers thereof) against all
losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement
of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company
by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person
who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the foregoing with
respect to the indemnification of the Holder.
(b) In connection
with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents
and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact
contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or
any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only
to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such
Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint
and several, among such Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall
be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to
such Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors
and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as provided in the
foregoing with respect to indemnification of the Company.
(c) Any person entitled
to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it
seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification
hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified
party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect
to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof (other than reasonable costs of investigation)
or any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld); provided,
however, that (x) if the indemnifying party fails to take reasonable steps necessary to defend diligently the action or proceeding
within 20 days after receiving notice from such indemnified party, (y) if such indemnified party who is a defendant in any action
or proceeding that is also brought against the indemnifying party reasonably shall have concluded that there may be one or more
legal defenses available to such indemnified party that are not available to the indemnifying party or (z) if representation of
both parties by the same counsel is otherwise inappropriate under applicable standards of professional conduct, then, in any such
case, the indemnified party shall have the right to assume or continue its own defense and the indemnifying party shall be liable
for any expenses therefor. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall
not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with
respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the
consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in
all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement)
or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified
party of a release from all liability in respect to such claim or litigation.
(d) The indemnification
provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of
securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions
as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or such Holder’s
indemnification is unavailable for any reason.
(e) If the indemnification
provided under this Section 4.1 from the indemnifying party is unavailable or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu
of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such
losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying
party and indemnified party shall be determined by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by,
or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified
party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided,
however, that the liability of any Holder under this Section 4.1(e) shall be limited to the amount of the net proceeds
received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the
losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in Section 4.1(a),
Section 4.1(b) and Section 4.1(c) above, any legal or other fees, charges or expenses reasonably incurred by such
party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 4.1(e) were determined by pro rata allocation or by any other method of allocation, which
does not take account of the equitable considerations referred to in this Section 4.1(e). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to
this Section 4.1(e) from any person who was not guilty of such fraudulent misrepresentation.
Article
V
TRANSFER RESTRICTIONS
Section 5.1 Lock-Up.
Each Holder agrees that it, he or she shall not Transfer any Registrable Securities until the expiration of the Lock-Up Period.
Section 5.2 Permitted
Transferees. Notwithstanding the provisions set forth in Section 5.1, Transfers of the Registrable Securities that are
held by the Holder or any of their Permitted Transferees (that have complied with this Section 5.2), are permitted to the
following (each of which shall be considered a “Permitted Transferee”): (a) to the Company’s officers or directors,
any affiliate or family member of any of the Company’s officers or directors, (b) in the case of an entity, to such Holder’s
Affiliates, members, stockholders, partners or other equity holders, (c) in the case of an individual, by gift to a member of such
individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family,
an affiliate of such individual or to a charitable organization; (d) in the case of an individual, by virtue of laws of descent
and distribution upon death of such individual; (e) in the case of an individual, pursuant to a qualified domestic relations order;
(f) by virtue of the laws of the State of Delaware; or (g) in the event of the Company’s liquidation, merger, capital stock
exchange, reorganization or other similar transaction which results in all of the Company’s stockholders having the right
to exchange their shares of Common Stock for cash, securities or other property subsequent to the Closing Date; provided, however,
that in the case of clauses (a) through (f), these Permitted Transferees must enter into a written agreement with the Company agreeing
to be bound by the transfer restrictions herein.
Article
VI
MISCELLANEOUS
Section 6.1 Notices.
All notices, demands, requests, instructions, claims, consents, waivers and other communications to be given or delivered under
or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when personally
delivered (or, if delivery is refused, upon presentment), received by fax or email (with hard copy to follow) prior to 5:00 p.m.
Eastern Time on a Business Day or delivery by reputable overnight express courier (charges prepaid) or (b) three (3) days following
mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing,
notices, demands and communications to a Holder or the Company shall be sent to the addresses indicated below:
Notices to any Holder:
At the address on file with the Company.
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with a copy to (which shall not constitute
notice):
Morrison Cohen LLP
909 Third Avenue, 27th Floor
New York, New York, 10022
Attention: David LaGalia, Esq.
Zachary Jacobs, Esq.
Fax: (212) 735-8708
Email: dlagalia@morrisoncohen.com
zjacobs@morrisoncohen.com
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Eos Energy Storage LLC
3920 Park Ave
Edison, NJ 08820
Attention: Joe Mastrangelo
Email: jmastrangelo@eosenergystorage.com
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with a copy to (which shall not constitute
notice):
White &
Case LLP
1221 Avenue
of the Americas
New York,
New York 10020-1095
Attention:
Joel Rubinstein
Luke Laumann
Fax: (212)
354-8113
Email: joel.rubinstein@whitecase.com
llaumann@whitecase.com
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Section 6.2 Assignment;
No Third Party Beneficiaries.
(a) This Agreement
and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in
part.
(b) Prior to the
expiration of the Lock-up Period, no Holder may assign or delegate such Holder’s rights, duties or obligations under this
Agreement, in whole or in part, except in connection with a Transfer of Registrable Securities by such Holder to a Permitted Transferee;
provided, in each case, that such Permitted Transferee agrees to become bound by the transfer restrictions set forth in this Agreement.
Following the expiration of the Lock-up Period, the rights granted to a Holder by the Company hereunder may be transferred
or assigned (but only with all related obligations) by a Holder only to (i) a Permitted Transferee of such Holder, or (ii)
a transferee or assignee that is a transferee or assignee of not less than 50,000 Registrable Securities (as presently constituted
and subject to subsequent adjustments for share splits, share dividends, reverse share splits and the like); provided, that
(x) such transfer or assignment of Registrable Securities is effected in accordance with applicable securities laws (subject
to reasonable verification by the Company), (y) the Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee and the Registrable Securities with respect to which such rights are being transferred
and (z) such transferee agrees in a written instrument delivered to the Company to be bound by and subject to the terms and conditions
of this Agreement.
(c) This Agreement
and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the
permitted assigns of the Holders, which shall include Permitted Transferees.
(d) This Agreement
shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement
and this Section 6.2, except that the Founder Holders, severally and not jointly, shall be express third party beneficiaries of
Section 2.2(b)(i) and Section 2.3(b).
(e) No assignment
by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company
unless and until the Company shall have received (i) written notice of such assignment as provided in Section 6.1 and (ii)
the written agreement of the assignee, in the form attached hereto as Exhibit A, to be bound by the terms and provisions
of this Agreement. Any transfer or assignment made other than as provided in this Section 6.2 shall be null and void.
(f) A Unitholder
(as defined in the Merger Agreement) may be admitted as a Holder herein after the execution of this Agreement upon the receipt
by the Company of a duly completed and executed written agreement to be bound by the terms and provisions of this Agreement in
form and substance satisfactory to the Company.
Section 6.3 Counterparts.
This Agreement and agreements, certificates, instruments and documents entered into in connection herewith may be executed and
delivered in one or more counterparts and by fax or email, each of which shall be deemed an original and all of which shall be
considered one and the same agreement. No party hereto shall raise the use of a fax machine or email to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine or email
as a defense to the formation or enforceability of a contract and each party hereto forever waives any such defense.
Section 6.4 Governing
Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without
regard to the principles of conflicts of laws thereof. Each party irrevocably submits to the exclusive jurisdiction of any New
York State or United States Federal court sitting in The City of New York, Borough of Manhattan, over any suit, action or proceeding
arising out of or relating to this Agreement. Each party irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of venue of any such suit, action or proceeding brought in such a court and any
claim that any such suit, action or proceeding brought in such a court has been brought in an inconvenient forum. Any such process
or summons to be served upon any party may be served by transmitting a copy thereof by registered or certified mail, return receipt
requested, postage prepaid, addressed to it at the address set forth in Section 6.1. Such mailing shall be deemed personal service
and shall be legal and binding upon any party in any action, proceeding or claim. Each party waives, to the fullest extent permitted
by law, any other requirements of or objections to personal jurisdiction with respect thereto. Each party agrees that the other
party shall be entitled to recover all of its reasonable attorneys’ fees and expenses relating to any action or proceeding
and/or incurred in connection with the preparation therefor if any of them is the prevailing party in such action or proceeding.
EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 6.5 Specific
Performance. Each party hereto recognizes and affirms that in the event any of the provisions of this Agreement are not performed
in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching
party would have no adequate remedy at law) and the non-breaching party would be irreparably damaged. Accordingly, each party hereto
agrees that each other party hereof shall be entitled to specific performance, an injunction or other equitable relief (without
posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions of this Agreement
and to enforce specifically this Agreement and the terms and provisions hereof in any proceeding, in addition to any other remedy
to which such person may be entitled.
Section 6.6 Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement or the application of any such provision to any person or circumstance shall be held
to be prohibited by or invalid, illegal or unenforceable under applicable law in any respect by a court of competent jurisdiction,
such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of this Agreement. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.
Section 6.7 Interpretation.
The headings and captions used in this Agreement have been inserted for convenience of reference only and do not modify, define
or limit any of the terms or provisions hereof.
Section 6.8 Entire
Agreement. This Agreement contains the entire agreement and understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings, whether written or oral, relating to such subject matter
in any way.
Section 6.9 Amendments
and Modifications. Upon the written consent of the Company and the Holders of at least a majority in interest of the Registrable
Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth in this Agreement
may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however,
that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one Holder, solely in its capacity
as a holder of the shares of equity interests of the Company, in a manner that is materially different from the other Holders (in
such capacity) shall require the consent of the Holder so affected. No course of dealing between any Holder or the Company and
any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under
this Agreement shall operate as a waiver of any rights or remedies of any Holder or the Company. No single or partial exercise
of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights
or remedies hereunder or thereunder by such party.
Section 6.10 Term.
This Agreement shall terminate upon the date as of which no Holders (or permitted assignees under Section 6.2) hold any
Registrable Securities. The provisions of Section 3.5 and Article IV shall survive any termination.
Section 6.11 Further
Assurances. In connection with this Agreement and the transactions contemplated hereby, upon the written request by the Company,
each Holder shall execute and deliver any additional documents and instruments and perform any additional acts that may be reasonably
necessary to effectuate and perform the provisions of this Agreement and the transactions contemplated hereby.
* * * * *
IN WITNESS WHEREOF,
each of the undersigned has caused this Agreement to be executed as of the date first written above.
Company:
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EOS ENERGY ENTERPRISES, INC.
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By:
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/s/ Sagar Kurada
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Name:
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Sagar Kurada
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Title:
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Chief Financial Officer
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ALTENERGY STORAGE LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY STORAGE II LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY STORAGE IV LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY STORAGE V LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY STORAGE VI LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY STORAGE BRIDGE LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY STORAGE BRIDGE PHASE II LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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ALTENERGY TRANSMISSION LLC
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By:
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/s/ Russell Sidolph
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Name:
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Russell Sidolph
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Title:
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Managing Director
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INTERNATIONAL
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By:
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/s/ Krishna P. Singh
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Name:
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Krishna P. Singh
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Title:
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President & CEO
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SINGH REAL ESTATE ENTERPRISES INC
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By:
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/s/ Martha J. Singh
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Name:
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Martha J. Singh
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Title:
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President
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RESERVOIR RESOURCE PARTNERS, L.P.
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By:
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/s/ Cyrus Borzooyeh
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Name:
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Cyrus Borzooyeh
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Title:
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Chief Financial Officer
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RESERVOIR CAPITAL PARTNERS, L.P.
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By:
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/s/ Cyrus Borzooyeh
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Name:
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Cyrus Borzooyeh
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Title:
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Chief Financial Officer
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RESERVOIR CAPITAL INVESTMENT PARTNERS, L.P.
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By:
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/s/ Cyrus Borzooyeh
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Name:
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Cyrus Borzooyeh
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Title:
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Chief Financial Officer
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RESERVOIR CAPITAL MASTER FUND II, L.P.
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By:
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/s/ Cyrus Borzooyeh
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Name:
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Cyrus Borzooyeh
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Title:
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Chief Financial Officer
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PRISMA ENERGY LLC
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By:
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/s/ James Hughes
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Name:
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James Hughes
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Title:
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Chief Executive Officer
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OSPRAIE PARTNERS LLC
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By:
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/s/ Dwight Anderson
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Name:
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Dwight Anderson
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Title:
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Managing Member
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FISHER EOS LLC
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By:
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/s/ Kenneth Fisher
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Name:
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Kenneth Fisher
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Title:
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Member
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By:
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/s/ Winston Fisher
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Name:
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Winston Fisher
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Title:
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Member
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ACE Venture Opportunities III SPC on behalf of Eos SP (Previously known as ACE ENERGY EFFICIENCY SPC on behalf of Eos SP)
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By:
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/s/ Adam Said
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Name:
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Adam Said
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Title:
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Director
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EXHIBIT A
JOINDER
Joinder
The undersigned is
executing and delivering this Joinder pursuant to the Registration Rights Agreement, dated as of November 16, 2020 (as the same
may hereafter be amended, the “Registration Rights Agreement”), among Eos Energy Enterprises, Inc., a Delaware
corporation (the “Company”), and the other person named as parties therein.
By executing and delivering
this Joinder to the Company, the undersigned hereby agrees to become a party to, to be bound by, and to comply with the provisions
of the Registration Rights Agreement as a Holder in the same manner as if the undersigned were an original signatory to the Registration
Rights Agreement, and the undersigned’s ________________ number of shares of _____________________ shall be included as Registrable
Securities under the Registration Rights Agreement.
Accordingly, the undersigned
has executed and delivered this Joinder as of the ___ day of ____________, ____.
[●]
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Signature of Stockholder
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[Print Name of Stockholder]
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Address:
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Agreed and Accepted as of:
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Eos Energy Enterprises, Inc.
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By:
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Its:
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Exhibit A to Registration Rights Agreement
Exhibit 10.10
B. RILEY PRINCIPAL MERGER CORP. II
2020 INCENTIVE PLAN
1. Establishment
of the Plan; Effective Date; Duration.
(a) Establishment
of the Plan; Effective Date. B. Riley Principal Merger Corp. II, a Delaware corporation (the “Company”),
hereby establishes this incentive compensation plan to be known as the “B. Riley Principal Merger Corp. II 2020 Incentive
Plan,” as amended from time to time (the “Plan”). The Plan permits the grant of Incentive Stock Options,
Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards, Other
Cash-Based Awards and Dividend Equivalents. If the Plan is not so approved by the stockholders of the Company, then the Plan will
be null and void in its entirety. The Plan shall remain in effect as provided in Section 1(b) of the Plan. Capitalized but undefined
terms shall have the meaning set forth in Section 3 of the Plan.
(b) Duration
of the Plan. The Plan shall commence on the Effective Date and shall remain in effect, subject to the right of the Board
to amend or terminate the Plan at any time pursuant to Section 13. However, in no event may an Award be granted under the Plan
on or after ten years from the Effective Date.
2. Purpose.
The purpose of the Plan is to provide a means through which the Company and its Affiliates may attract and retain key personnel
and to provide a means whereby certain directors, officers, employees, consultants and advisors (and certain prospective directors,
officers, employees, consultants, and advisors) of the Company and its Affiliates can acquire and maintain an equity interest in
the Company, or be paid incentive compensation, which may be measured by reference to the value of Common Stock, thereby strengthening
their commitment to the welfare of the Company and its Affiliates and aligning their interests with those of the Company’s
stockholders.
3. Definitions.
Certain terms used herein have the definitions given to them in the first instance in which they are used. In addition, for purposes
of the Plan, the following terms are defined as set forth below:
(a) “Affiliate”
means (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company
and/or (ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest. The
term “control” (including, with correlative meaning, the terms “controlled by” and “under common
control with”), as applied to any person or entity, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such person or entity, whether through the ownership of voting or other
securities, by contract or otherwise.
(b) “Applicable
Laws” means the requirements relating to the administration of equity incentive plans under U.S. federal and state
securities, tax and other applicable laws, rules and regulations, the applicable rules of any stock exchange or quotation system
on which the Common Stock are listed or quoted, and the applicable laws and rules of any foreign country or other jurisdiction
where Awards are granted, as are in effect from time to time.
(c) “Award”
means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted
Stock, Restricted Stock Unit, Other Stock-Based Awards, Other Cash-Based Awards, and/or Dividend Equivalents, granted under the
Plan.
(d) “Award
Agreement” means a written agreement between a Participant and the Company which sets out the terms of the grant
of an Award.
(e) “Board”
means the Board of Directors of the Company.
(f) “Cause”
means, in the case of a particular Award, unless the applicable Award Agreement states otherwise, (i) the Company or an Affiliate
having “cause” to terminate a Participant’s employment or service, as defined in any employment or consulting
or similar agreement between the Participant and the Company or an Affiliate in effect at the time of such termination, or (ii)
in the absence of any such employment or consulting or similar agreement (or the absence of any definition of “Cause”
contained therein), a Participant’s (A) conviction of, or the entry of a plea of guilty or no contest to, a felony or any
other crime that causes the Company or its Affiliates public disgrace or disrepute, or materially and adversely affects the Company’s
or its Affiliates’ operations or financial performance or the relationship the Company has with its customers; (B) gross
negligence or willful misconduct with respect to the Company or any of its Affiliates, including, without limitation, fraud, embezzlement,
theft or proven dishonesty in the course of his employment or other service to the Company or an Affiliate; (C) alcohol abuse or
use of controlled substances other than in accordance with a physician’s prescription; (D) refusal to perform any lawful,
material obligation or fulfill any duty (other than any duty or obligation of the type described in clause (F) below) to the Company
or its Affiliates (other than due to a disability, as determined by the Committee), which refusal, if curable, is not cured within
15 days after delivery of written notice thereof; (E) material breach of any agreement with or duty owed to the Company or any
of its Affiliates, which breach, if curable, is not cured within 15 days after the delivery of written notice thereof; or (F) any
breach of any obligation or duty to the Company or any of its Affiliates (whether arising by statute, common law or agreement)
relating to confidentiality, noncompetition, nonsolicitation and/or proprietary rights.
(g) “Change
in Control” shall, in the case of a particular Award, unless the applicable Award Agreement states otherwise or contains
a different definition of “Change in Control,” be deemed to occur upon any of the following events:
(i) any
“person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than (A) the Company or any of
its Affiliates, (B) any trustee or other fiduciary holding securities under any employee benefit plan of the Company or any of
its Affiliates, (C) an underwriter temporarily holding securities pursuant to an offering of such securities, or (D) an entity
owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of Common
Stock) becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, by
way of merger, consolidation, recapitalization, reorganization or otherwise, of fifty percent (50%) or more of the total voting
power of the then outstanding voting securities of the Company;
(ii) the
cessation of control (by virtue of their not constituting a majority of directors) of the Board by the individuals (the “Continuing
Directors”) who (x) were directors on the Effective Date or (y) become directors after Effective Date and whose election
or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then
in office who were directors on the Effective Date or whose election or nomination for election was previously so approved;
(iii) the
consummation of a merger or consolidation of the Company with any other company, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity) at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or
consolidation;
(iv) the
consummation of a plan of complete liquidation of the Company or the sale or disposition by the Company of all or substantially
all the Company’s assets; or
(v) any
other event specified as a “Change in Control” in an applicable Award Agreement.
Notwithstanding the
foregoing, if a Change in Control constitutes a payment event with respect to any Award (or any portion of an Award) that provides
for the deferral of compensation that is subject to Section 409A of the Code, to the extent required to avoid the imposition of
additional taxes under Section 409A of the Code, the transaction or event described in subsection (i), (ii), (iii), (iv),
or (v) with respect to such Award (or portion thereof) shall only constitute a Change in Control for purposes of the payment timing
of such Award if such transaction also constitutes a “change in control event,” as defined in Treasury Regulation Section
1.409A-3(i)(5).
(h) “Claim”
means any claim, liability or obligation of any nature, arising out of or relating to the Plan or an alleged breach of the Plan
or an Award Agreement.
(i) “Code”
means the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Code
shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor
provisions to such section, regulations or guidance.
(j) “Committee”
means a committee of at least two people as the Board may appoint to administer the Plan or, if no such committee has been appointed
by the Board, the Board.
(k) “Common
Stock” means the Class A common stock of the Company, par value $0.0001 per share.
(l) “Company”
means B. Riley Principal Merger Corp. II, a Delaware corporation.
(m) “Date
of Grant” means the date on which the granting of an Award is authorized, or such other date as may be specified
in such authorization or applicable Award Agreement.
(n) “Dividend
Equivalent” means a right awarded under Section 11 to receive the equivalent value (in cash or Common Stock) of ordinary
dividends that would otherwise be paid on the Common Stock subject to an Award that is a full-value award but that have not been
issued or delivered.
(o) “Effective
Date” means the later of (i) the date that the Company’s stockholders approve the Plan and (ii) Closing.
(p) “Eligible
Director” means a person who is a “non-employee director” within the meaning of Rule 16b-3 under the
Exchange Act.
(q) “Eligible
Person” with respect to an Award denominated in Common Stock, means any (i) individual employed by the Company
or an Affiliate; (ii) director of the Company or an Affiliate; (iii) consultant or advisor to the Company or an
Affiliate; provided, that, if the Securities Act applies, such persons must be eligible to be offered securities registrable
on Form S-8 under the Securities Act; or (iv) prospective employees, directors, officers, consultants or advisors who
have accepted offers of employment or consultancy from the Company or its Affiliates (and would satisfy the provisions of clauses (i)
through (iii) above once he or she begins employment with or begins providing services to the Company or its Affiliates, provided,
that, the Date of Grant of any Award to such individual shall not be prior to the date he begins employment with or begins providing
services to the Company or its Affiliates).
(r) “Exchange
Act” means the U.S. Securities Exchange Act of 1934, as it may be amended from time to time, including the rules
and regulations promulgated thereunder and successor provisions and rules and regulations thereto.
(s) “Exercise
Price” has the meaning given such term in Section 7(b) of the Plan.
(t) “Fair
Market Value” means, as of any date, the value of Common Stock determined as follows:
(i) If
the Common Stock are listed on any established stock exchange or a national market system, the closing sales price for such shares
(or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in
The Wall Street Journal or such other source as the Committee deems reliable;
(ii) If
the Common Stock are regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value
of a Common Share will be the mean between the high bid and low asked prices for the Common Stock on the day of determination,
as reported in The Wall Street Journal or such other source as the Committee deems reliable; or
(iii) In
the absence of an established market for the Common Stock, the Fair Market Value will be determined in good faith by the Committee
(acting on the advice of an Independent Third Party, should the Committee elect in its sole discretion to utilize an Independent
Third Party for this purpose).
(iv) Notwithstanding
the foregoing, the determination of Fair Market Value in all cases shall be in accordance with the requirements set forth under
Section 409A of the Code to the extent necessary for an Award to comply with, or be exempt from, Section 409A of the Code.
(u) “Immediate
Family Members” shall have the meaning set forth in Section 14(b)(ii).
(v) “Incentive
Stock Option” means an Option that is designated by the Committee as an incentive stock option as described in Section 422
of the Code and otherwise meets the requirements set forth in the Plan for incentive stock options.
(w) “Indemnifiable
Person” shall have the meaning set forth in Section 4(e) of the Plan.
(x) “Independent
Third Party” means an individual or entity independent of the Company having experience in providing investment banking
or similar appraisal or valuation services and with expertise generally in the valuation of securities or other property for purposes
of this Plan. The Committee may utilize one or more Independent Third Parties.
(y) “Mature
Shares” means Common Stock owned by a Participant that are not subject to any pledge or security interest and that
have been either previously acquired by the Participant on the open market or meet such other requirements, if any, as the Committee
may determine are necessary in order to avoid an accounting earnings charge on account of the use of such shares to pay the Exercise
Price or satisfy a tax or deduction obligation of the Participant.
(z) “Nonqualified
Stock Option” means an Option that is not designated by the Committee as an Incentive Stock Option.
(aa) “Option”
means an Award granted under Section 7 of the Plan.
(bb) “Option
Period” has the meaning given such term in Section 7(c) of the Plan.
(cc) “Other
Cash-Based Award” means a cash Award granted to a Participant under Section 10 of the Plan, including cash awarded
as a bonus or upon the attainment of performance goals or otherwise as permitted under the Plan.
(dd) “Other
Stock-Based Award” means an equity-based or equity-related Award, other than an Option, SAR, Restricted Stock, Restricted
Stock Unit or Dividend Equivalent, granted in accordance with the terms and conditions set forth under Section 10 of the Plan
(including upon the attainment of any performance goals or otherwise as permitted under the Plan).
(ee) “Participant”
means an Eligible Person who has been selected by the Committee to participate in the Plan and to receive an Award pursuant to
Section 6 of the Plan.
(ff) “Permitted
Transferee” shall have the meaning set forth in Section 14(b)(ii) of the Plan.
(gg) “Person”
means any individual, entity or group within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
(hh) “Plan”
means this B. Riley Principal Merger Corp. II 2020 Incentive Plan, as amended from time to time.
(ii) “Restricted
Period” means the period of time determined by the Committee during which an Award is subject to restrictions or,
as applicable, the period of time within which performance is measured for purposes of determining whether an Award has been earned.
(jj) “Restricted
Stock Unit” means an unfunded and unsecured promise to deliver Common Stock, cash, other securities or other property,
subject to certain performance or time-based restrictions (including, without limitation, a requirement that the Participant remain
continuously employed, provide continuous services for a specified period of time, or attain specified performance objectives),
granted under Section 9 of the Plan.
(kk) “Restricted
Stock” means Common Stock, subject to certain specified performance or time-based restrictions (including, without
limitation, a requirement that the Participant remain continuously employed, provide continuous services for a specified period
of time, or attain specified performance objectives), granted under Section 9 of the Plan.
(ll) “SAR
Period” has the meaning given such term in Section 8(c) of the Plan.
(mm) “Securities
Act” means the Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any section
of the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section, and
any amendments or successor provisions to such section, rules, regulations or guidance.
(nn) “Stock
Appreciation Right” or “SAR” means an Award granted under Section 8 of the Plan.
(oo) “Strike
Price” means, except as otherwise provided by the Committee in the case of Substitute Awards, (i) in the case
of a SAR granted in tandem with an Option, the Exercise Price of the related Option, or (ii) in the case of a SAR granted independent
of an Option, the Fair Market Value on the Date of Grant.
(pp) “Subsidiary”
means, with respect to any specified Person:
(i) any
corporation, association or other business entity of which more than 50% of the total voting power of shares (without regard to
the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively
transfers voting power) is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(ii) any
partnership (or any comparable foreign entity (A) the sole general partner (or functional equivalent thereof) or the managing general
partner of which is such Person or Subsidiary of such Person or (B) the only general partners (or functional equivalents thereof)
of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
(qq) “Substitute
Award” has the meaning given such term in Section 5(e).
4. Administration.
(a) The
Committee shall administer the Plan. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange
Act (if the Board is not acting as the Committee under the Plan), it is intended that each member of the Committee shall, at the
time he takes any action with respect to an Award under the Plan, be an Eligible Director. However, the fact that a Committee member
shall fail to qualify as an Eligible Director shall not invalidate any Award granted by the Committee that is otherwise validly
granted under the Plan.
(b) Subject
to the provisions of the Plan and Applicable Law, the Committee shall have the sole and plenary authority, in addition to other
express powers and authorizations conferred on the Committee by the Plan, to: (i) designate Participants; (ii) determine the
type or types of Awards to be granted to a Participant; (iii) determine the number of Common Stock to be covered by, or with
respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the terms
and conditions of any Award (including any performance goals, criteria, and/or periods applicable to Awards); (v) determine
whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Common Stock, other securities,
other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled,
exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what circumstances the delivery
of cash, Common Stock, other securities, other Awards or other property and other amounts payable with respect to an Award shall
be deferred either automatically or at the election of the Participant or of the Committee; (vii) interpret, administer, reconcile
any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument or agreement relating to,
or Award granted under, the Plan, including any changes required to comply with Applicable Laws; (viii) establish, amend,
suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper administration
of the Plan; (ix) accelerate the vesting or exercisability of, payment for or lapse of restrictions on, Awards; (x) modify
any performance goals, criteria and/or periods; and (y) make any other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan, in each case, to the extent consistent with the terms of the Plan.
(c) The
Committee may delegate to one or more officers of the Company or any Affiliate the authority to act on behalf of the Committee
with respect to any matter, right, obligation, or election that is the responsibility of or that is allocated to the Committee
herein, and that may be so delegated as a matter of law, except for grants of Awards to persons subject to Section 16 of the
Exchange Act.
(d) Unless
otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Award or any documents evidencing Awards granted pursuant to the Plan shall be within the sole discretion
of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons or entities, including, without
limitation, the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any stockholder of the Company.
(e) No
member of the Board, the Committee, delegate of the Committee or any employee or agent of the Company (each such person, an “Indemnifiable
Person”) shall be liable for any action taken or omitted to be taken or any determination made in good faith with respect
to the Plan or any Award hereunder. Each Indemnifiable Person shall be indemnified and held harmless by the Company against and
from any loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable
Person in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be a party or
in which such Indemnifiable Person may be involved by reason of any action taken or omitted to be taken under the Plan or any Award
Agreement and against and from any and all amounts paid by such Indemnifiable Person with the Company’s approval, in settlement
thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit or proceeding against such
Indemnifiable Person, provided that the Company shall have the right, at its own expense, to assume and defend any such
action, suit or proceeding and once the Company gives notice of its intent to assume the defense, the Company shall have sole control
over such defense with counsel of the Company’s choice. The foregoing right of indemnification shall not be available to
an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further
appeal) binding upon such Indemnifiable Person determines that the acts or omissions of such Indemnifiable Person giving rise to
the indemnification claim resulted from such Indemnifiable Person’s bad faith, fraud or willful criminal act or omission
or that such right of indemnification is otherwise prohibited by law or by the Company’s Articles of Incorporation or Bylaws.
The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such Indemnifiable
Persons may be entitled under the Company’s Articles of Incorporation or Bylaws, as a matter of law, or otherwise, or any
other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) Notwithstanding
anything to the contrary contained in the Plan, the Board may, in its sole discretion, at any time and from time to time, grant
Awards and administer the Plan with respect to such Awards. In any such case, the Board shall have all the authority granted to
the Committee under the Plan.
5. Grant
of Awards; Shares Subject to the Plan; Limitations.
(a) The
Committee may, from time to time, grant Awards to one or more Eligible Persons.
(b) Subject
to Section 12 of the Plan, Awards granted under the Plan shall be subject to the following limitations: (i) the Committee
is authorized to deliver under the Plan an aggregate of 6,000,000 Common Stock (“Original Share Reserve”);
provided, that the total number of Common Stock that will be reserved, and that may be issued, under the Plan will
automatically increase on the first trading day of each calendar year, beginning with calendar year 2021, by a number of Common
Stock equal to one percent (1%) of the total outstanding Common Stock on the last day of the prior calendar year, and (ii) the
maximum number of Common Stock that may be granted under the Plan during any single fiscal year to any Participant who is a non-employee
director, when taken together with any cash fees paid to such non-employee director during such year in respect of his service
as a non-employee director (including service as a member or chair of any committee of the Board), shall not exceed $500,000 in
total value (calculating the value of any such Awards based on the Fair Market Value on the Date of Grant of such Awards for financial
reporting purposes); provided that the non-employee directors who are considered independent (under the rules of The
New York Stock Exchange or other securities exchange on which the Common Stock is traded) may make exceptions to this limit for
a non-executive chair of the Board, if any, in which case the non-employee director receiving such additional compensation may
not participate in the decision to award such compensation. Notwithstanding the automatic annual increase set forth in (i) above,
the Board may act prior to January 1st of a given year to provide that there will be no such increase in the share reserve for
such year or that the increase in the share reserve for such year will be a lesser number of Common Stock than would otherwise
occur pursuant to the stipulated percentage.
(c) In
the event that (i) any Option or other Award granted hereunder is exercised through the tendering of Common Stock (either actually
or by attestation) or by the withholding of Common Stock by the Company, or (ii) tax or deduction liabilities arising from such
Option or other Award are satisfied by the tendering of Common Stock (either actually or by attestation) or by the withholding
of Common Stock by the Company, then in each such case the Common Stock so tendered or withheld shall be added to the Common Stock
available for grant under the Plan on a one-for-one basis. Shares underlying Awards under this Plan that are forfeited, canceled,
expire unexercised, or are settled in cash shall also be available again for issuance as Awards under the Plan.
(d) Common
Stock delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the
Company, shares purchased on the open market or by private purchase, or a combination of the foregoing.
(e) Awards
may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for, outstanding awards
previously granted by an entity acquired by the Company or with which the Company combines (“Substitute Awards”).
The number of Common Stock underlying any Substitute Awards shall not be counted against the aggregate number of Common Stock available
for Awards under the Plan.
6. Eligibility.
Participation shall be limited to Eligible Persons who have entered into an Award Agreement or who have received written notification
from the Committee, or from a person designated by the Committee, that they have been selected to participate in the Plan.
7. Options.
(a) Generally.
Each Option granted under the Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email
or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Option so granted
shall be subject to the conditions set forth in this Section 7 and to such other conditions not inconsistent with the Plan
as may be reflected in the applicable Award Agreement. All Options granted under the Plan shall be Nonqualified Stock Options unless
the applicable Award Agreement expressly states that the Option is intended to be an Incentive Stock Option. Subject to Section
12, the maximum aggregate number of Common Stock that may be issued through the exercise of Incentive Stock Options granted under
the Plan is the number of Common Stock equal to the Original Share Reserve, which, for the avoidance of doubt, such share limit
shall not be subject to the annual adjustment provided in Section 5(b)(i). Incentive Stock Options shall be granted only to Eligible
Persons who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person
who is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option
unless the Plan has been approved by the stockholder of the Company in a manner intended to comply with the stockholder approval
requirements of Section 422(b)(1) of the Code; provided that any Option intended to be an Incentive Stock Option shall
not fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified
Stock Option unless and until such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of
such grant shall be subject to and comply with such rules as may be prescribed by Section 422 of the Code. If for any reason
an Option intended to be an Incentive Stock Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then,
to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option appropriately
granted under the Plan.
(b) Exercise
Price. Except with respect to Substitute Awards, the exercise price (“Exercise Price”) per Common Share
for each Option shall not be less than 100% of the Fair Market Value of such share determined as of the Date of Grant; provided,
however, that in the case of an Incentive Stock Option granted to an employee who, at the time of the grant of such Option,
owns shares representing more than 10% of the total combined voting power of all classes of shares of the Company or any related
corporation (as determined in accordance with Treasury Regulation Section 1.422-2(f)), the Exercise Price per share shall
not be less than 110% of the Fair Market Value per share on the Date of Grant and provided further, that, notwithstanding
any provision herein to the contrary, the Exercise Price shall not be less than the par value per Common Share.
(c) Vesting
and Expiration. Options shall vest and become exercisable in such manner and on such date or dates determined by the Committee
(including, if applicable, the attainment of any performance goals, as determined by the Committee in the applicable Award Agreement)
and shall expire after such period, not to exceed ten years, as may be determined by the Committee (the “Option Period”);
provided, however, that the Option Period shall not exceed five years from the Date of Grant in the case of an Incentive
Stock Option granted to a Participant who on the Date of Grant owns shares representing more than 10% of the total combined voting
power of all classes of shares of the Company or any related corporation (as determined in accordance with Treasury Regulation
Section 1.422- 2(f)); provided, further, that notwithstanding any vesting dates set by the Committee, the Committee
may, in its sole discretion, accelerate the exercisability of any Option, which acceleration shall not affect the terms and conditions
of such Option other than with respect to exercisability. In the event of any termination of employment or service with the Company
or its Affiliates thereof of a Participant who has been granted one or more Options, the Options shall be exercisable at the time
or times and subject to the terms and conditions set forth in the Award Agreement. If the Option would expire at a time when the
exercise of the Option would violate applicable securities laws, the expiration date applicable to the Option will be automatically
extended to a date that is 30 calendar days following the date such exercise would no longer violate applicable securities
laws (so long as such extension shall not violate Section 409A of the Code); provided, that in no event shall
such expiration date be extended beyond the expiration of the Option Period.
(d) Method
of Exercise and Form of Payment. No Common Stock shall be delivered pursuant to any exercise of an Option until payment
in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to
any taxes required to be withheld or paid upon exercise of such Option. Options that have become exercisable may be exercised by
delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Option, accompanied by
payment of the Exercise Price. The Exercise Price shall be payable (i) in cash, check, cash equivalent and/or Common Stock valued
at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means
of attestation of ownership of a sufficient number of Common Stock in lieu of actual delivery of such shares to the Company);
provided, that, such Common Stock are not subject to any pledge or other security interest and are Mature Shares;
and (ii) by such other method as the Committee may permit in accordance with Applicable Law, in its sole discretion, including
without limitation: (A) in other property having a Fair Market Value on the date of exercise equal to the Exercise Price, (B) if
there is a public market for the Common Stock at such time, by means of a broker-assisted “cashless exercise” pursuant
to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Stock otherwise deliverable
upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price, or (C) by a “net
exercise” method whereby the Company withholds from the delivery of the Common Stock for which the Option was exercised that
number of Common Stock having a Fair Market Value equal to the aggregate Exercise Price for the Common Stock for which the Option
was exercised. No fractional Common Stock shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall
determine whether cash, other securities or other property shall be paid or transferred in lieu of any fractional Common Stock,
or whether such fractional Common Stock or any rights thereto shall be canceled, terminated or otherwise eliminated.
(e) Notification
upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option under the
Plan shall notify the Company in writing immediately after the date he makes a disqualifying disposition of any Common Stock acquired
pursuant to the exercise of such Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation,
any sale) of such Common Stock before the later of (i) two years after the Date of Grant of the Incentive Stock Option or
(ii) one year after the date of exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in
accordance with procedures established by the Committee, retain possession of any Common Stock acquired pursuant to the exercise
of an Incentive Stock Option as agent for the applicable Participant until the end of the period described in the preceding sentence.
(f) Compliance
With Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to exercise an Option in a
manner that the Committee determines would violate the SarbanesOxley Act of 2002, if applicable; any other Applicable Law; the
applicable rules and regulations of the Securities and Exchange Commission; or the applicable rules and regulations of any securities
exchange or inter-dealer quotation system on which the securities of the Company are listed or traded.
8. Stock
Appreciation Rights.
(a) Generally.
Each SAR granted under the Plan shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email
or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each SAR so granted
shall be subject to the conditions set forth in this Section 8 and to such other conditions not inconsistent with the Plan
as may be reflected in the applicable Award Agreement. Any Option granted under the Plan may include tandem SARs. The Committee
also may award SARs to Eligible Persons independent of any Option.
(b) Strike
Price. The Strike Price per Common Share for each SAR shall not be less than 100% of the Fair Market Value of such share
determined as of the Date of Grant.
(c) Vesting
and Expiration. A SAR granted in connection with an Option shall become exercisable and shall expire according to the same
vesting schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become
exercisable and shall expire in such manner and on such date or dates determined by the Committee (including, if applicable, the
attainment of any performance goals, as shall be determined by the Committee in the applicable Award Agreement) and shall expire
after such period, not to exceed ten years, as may be determined by the Committee (the “SAR Period”); provided,
however, that notwithstanding any vesting dates set by the Committee, the Committee may, in its sole discretion,
accelerate the exercisability of any SAR, which acceleration shall not affect the terms and conditions of such SAR other than with
respect to exercisability. In the event of any termination of employment or service with the Company and its Affiliates thereof
of a Participant who has been granted one of more SARs, the SARs shall be exercisable at the time or times and subject to the terms
and conditions as set forth in the Award Agreement (or in the underlying Option Award Agreement, as may be applicable). If the
SAR would expire at a time when the exercise of the SAR would violate applicable securities laws, the expiration date applicable
to the SAR will be automatically extended to a date that is 30 calendar days following the date such exercise would no longer violate
applicable securities laws (so long as such extension shall not violate Section 409A of the Code); provided,
that, in no event shall such expiration date be extended beyond the expiration of the SAR Period.
(d) Method
of Exercise. SARs that have become exercisable may be exercised by delivery of written or electronic notice of exercise
to the Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such
SARs were awarded.
(e) Payment.
Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of shares subject to the SAR
that are being exercised, multiplied by the excess, if any, of the Fair Market Value of one Common Share on the exercise date over
the Strike Price, less an amount equal to any taxes required to be withheld or paid. The Company shall pay such amount in cash,
in Common Stock having a Fair Market Value equal to such amount, or any combination thereof, as determined by the Committee. No
fractional Common Stock shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether
cash, other securities or other property shall be paid or transferred in lieu of any fractional Common Stock, or whether such fractional
Common Stock or any rights thereto shall be canceled, terminated or otherwise eliminated.
9. Restricted
Stock and Restricted Stock Units.
(a) Generally.
Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement (whether in paper or electronic
medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)).
Each such grant shall be subject to the conditions set forth in this Section 9 and to such other conditions not inconsistent
with the Plan as may be reflected in the applicable Award Agreement (including the performance goals, if any, upon whose attainment
the Restricted Period shall lapse in part or full).
(b) Restricted
Accounts; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, a book entry in a restricted account
shall be established in the Participant’s name at the Company’s transfer agent and, if the Committee determines that
the Restricted Stock shall be held by the Company or in escrow rather than held in such restricted account pending the release
of the applicable restrictions, the Committee may require the Participant to additionally execute and deliver to the Company (i)
an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate stock power (endorsed in blank) with
respect to the Restricted Stock covered by such agreement. If a Participant shall fail to execute an agreement evidencing an Award
of Restricted Stock and, if applicable, an escrow agreement and blank stock power within the amount of time specified by the Committee,
the Award shall be null and void. Subject to the restrictions set forth in this Section 9 and the applicable Award Agreement,
the Participant generally shall have the rights and privileges of a stockholder as to such Restricted Stock, including, without
limitation, the right to vote such Restricted Stock and the right to receive dividends, if applicable. To the extent shares of
Restricted Stock are forfeited, any share certificates issued to the Participant evidencing such shares shall be returned to the
Company, and all rights of the Participant to such shares and as a stockholder with respect thereto shall terminate without further
obligation on the part of the Company.
(c) Vesting.
Unless otherwise provided by the Committee in an Award Agreement the unvested portion of Restricted Stock and Restricted Stock
Units shall terminate and be forfeited upon termination of employment or service of the Participant granted the applicable Award.
(d) Delivery
of Restricted Stock and Settlement of Restricted Stock Units.
(i) Upon
the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in the applicable
Award Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award
Agreement. If an escrow arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his beneficiary,
without charge, the share certificate evidencing the shares of Restricted Stock that have not then been forfeited and with respect
to which the Restricted Period has expired (rounded down to the nearest full share) or shall register such shares in the Participants
name without any such restrictions. Dividends, if any, that may have been withheld by the Committee and attributable to any particular
share of Restricted Stock shall be distributed to the Participant in cash or, at the sole discretion of the Committee, in Common
Stock having a Fair Market Value equal to the amount of such dividends, upon the release of restrictions on such share and, if
such share is forfeited, the Participant shall have no right to such dividends (except as otherwise set forth by the Committee
in the applicable Award Agreement).
(ii) Unless
otherwise provided by the Committee in an Award Agreement, upon the expiration of the Restricted Period with respect to any outstanding
Restricted Stock Units, the Company shall deliver to the Participant, or his beneficiary, without charge, one Common Share for
each such outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole discretion,
elect to (A) pay cash or part cash and part Common Share in lieu of delivering only Common Stock in respect of such Restricted
Stock Units or (B) defer the delivery of Common Stock (or cash or part Common Stock and part cash, as the case may be) beyond the
expiration of the Restricted Period if such delivery would result in a violation of Applicable Law until such time as is no longer
the case. If a cash payment is made in lieu of delivering Common Stock, the amount of such payment shall be equal to the Fair Market
Value of the Common Stock as of the date on which the Restricted Period lapsed with respect to such Restricted Stock Units, less
an amount equal to any taxes required to be withheld or paid.
10. Other
Stock-Based Awards and Other Cash-Based Awards..
(a) Other
Stock-Based Awards. The Committee may grant types of equity-based or equityrelated Awards not otherwise described by the
terms of the Plan (including the grant or offer for sale of unrestricted Common Stock), in such amounts and subject to such terms
and conditions, as the Committee shall determine (including, if applicable, the attainment of any performance goals, as set forth
in the applicable Award Agreement). Such Other Stock-Based Awards may involve the transfer of actual Common Stock to Participants,
or payment in cash or otherwise of amounts based on the value of Common Stock. The terms and conditions of such Awards shall be
consistent with the Plan and set forth in the Award Agreement and need not be uniform among all such Awards or all Participants
receiving such Awards.
(b) Other
Cash-Based Awards. The Committee may grant a Participant a cash Award not otherwise described by the terms of the Plan,
including cash awarded as a bonus or upon the attainment of performance goals or otherwise as permitted under the Plan.
(c) Value
of Awards. Each Other Stock-Based Award shall be expressed in terms of Common Stock or units based on Common Stock, as
determined by the Committee, and each Other Cash-Based Awards shall be expressed in terms of cash, as determined by the Committee.
The Committee may establish performance goals in its discretion and any such performance goals shall be set forth in the applicable
Award Agreement. If the Committee exercises its discretion to establish performance goals, the number and/or value of Other Stock-Based
Awards or Other Cash-Based Awards that will be paid out to the Participant will depend on the extent to which such performance
goals are met.
(d) Payment
of Awards. Payment, if any, with respect to an Other Stock-Based Award or Other Cash-Based Award shall be made in accordance
with the terms of the Award, as set forth in the Award Agreement, in cash, Common Stock or a combination of cash and Common Stock,
as the Committee determines.
(e) Vesting.
The Committee shall determine the extent to which the Participant shall have the right to receive Other Stock-Based Awards or Other
Cash-Based Awards following the Participant’s termination of employment or service (including by reason of such Participant’s
death, disability (as determined by the Committee), or termination without Cause). Such provisions shall be determined in the sole
discretion of the Committee and will be included in the applicable Award Agreement but need not be uniform among all Other Stock-Based
Awards or Other Cash-Based Awards issued pursuant to the Plan and may reflect distinctions based on the reasons for the termination
of employment or service.
11. Dividend
Equivalents. No adjustment shall be made in the Common Stock issuable or taken into account under Awards on account of
cash dividends that may be paid or other rights that may be issued to the holders of Common Stock prior to issuance of such Common
Stock under such Award. The Committee may grant Dividend Equivalents based on the dividends declared on Common Stock that are subject
to any Award (other than an Option or Stock Appreciation Right). Any Award of Dividend Equivalents may be credited as of the dividend
payment dates, during the period between the Date of Grant of the Award and the date the Award becomes payable or terminates or
expires, as determined by the Committee; however, Dividend Equivalents shall not be payable unless and until the Award becomes
payable, and shall be subject to forfeiture to the same extent as the underlying Award. Dividend Equivalents may be subject to
any additional limitations and/or restrictions determined by the Committee. Dividend Equivalents shall be payable in cash, Common
Stock or converted to full-value Awards, calculated based on such formula, as may be determined by the Committee.
12. Changes
in Capital Structure and Similar Events. In the event of (a) any dividend (other than ordinary cash dividends) or
other distribution (whether in the form of cash, Common Stock, other securities or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, amalgamation, consolidation, spin-off, split-up, split-off, combination, repurchase
or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to acquire Common Stock or
other securities of the Company, or other similar corporate transaction or event (including, without limitation, a Change in Control)
that affects the Common Stock, or (b) unusual or infrequently occurring events (including, without limitation, a Change in Control)
affecting the Company, any Affiliate, or the financial statements of the Company or any Affiliate, or changes in applicable rules,
rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation system, accounting
principles or law, such that in either case an adjustment is determined by the Committee in its sole discretion to be necessary
or appropriate, then the Committee shall make any such adjustments in such manner as it may deem equitable, subject to the requirements
of Code Sections 409A, 421, and 422, if applicable, including without limitation any or all of the following:
(a) adjusting
any or all of (i) the number of Common Stock or other securities of the Company (or number and kind of other securities
or other property) that may be delivered in respect of Awards or with respect to which Awards may be granted under the Plan (including,
without limitation, adjusting any or all of the limitations under Section 5 of the Plan) and (ii) the terms of any outstanding
Award, including, without limitation, (A) the number of Common Stock or other securities of the Company (or number and kind of
other securities or other property) subject to outstanding Awards or to which outstanding Awards relate, (B) the Exercise Price
or Strike Price with respect to any Award or (C) any applicable performance measures;
(b) providing
for a substitution or assumption of Awards in a manner that substantially preserves the applicable terms of such Awards;
(c) accelerating
the exercisability or vesting of, lapse of restrictions on, or termination of, Awards or providing for a period of time for exercise
prior to the occurrence of such event;
(d) modifying
the terms of Awards to add events, conditions or circumstances (including termination of employment within a specified period after
a Change in Control) upon which the exercisability or vesting of or lapse of restrictions thereon will accelerate;
(e) deeming
any performance measures satisfied at target, maximum or actual performance through closing or such other level determined by the
Committee in its sole discretion, or providing for the performance measures to continue (as is or as adjusted by the Committee)
after closing;
(f) providing
that for a period prior to the Change in Control determined by the Committee in its sole discretion, any Options or SARs that would
not otherwise become exercisable prior to the Change in Control will be exercisable as to all Common Stock subject thereto (but
any such exercise will be contingent upon and subject to the occurrence of the Change in Control and if the Change in Control does
not take place after giving such notice for any reason whatsoever, the exercise will be null and void) and that any Options or
SARs not exercised prior to the consummation of the Change in Control will terminate and be of no further force and effect as of
the consummation of the Change in Control; and
(g) canceling
any one or more outstanding Awards and causing to be paid to the holders thereof, in cash, Common Stock, other securities or other
property, or any combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may
be based upon the price per Common Share received or to be received by other stockholders of the Company in such event), including
without limitation, in the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the
Fair Market Value (as of a date specified by the Committee) of the Common Stock subject to such Option or SAR over the aggregate
Exercise Price or Strike Price of such Option or SAR, respectively (it being understood that, in such event, any Option or SAR
having a per share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value of a Common Share subject thereto
may be canceled and terminated without any payment or consideration therefor); provided, however, that in the
case of any “equity restructuring” (within the meaning of the Financial Accounting Standards Board Accounting Standards
Codification Topic 718), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect such
equity restructuring. The Company shall give each Participant notice of an adjustment hereunder and, upon notice, such adjustment
shall be final, conclusive and binding for all purposes.
13. Amendments
and Termination.
(a) Amendment
and Termination of the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof
at any time; provided that (i) no amendment to Section 13(b) (to the extent required by the proviso in such Section 13(b))
shall be made without stockholder approval and (ii) no such amendment, alteration, suspension, discontinuation or termination shall
be made without stockholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable
to the Plan (including, without limitation, as necessary to comply with any rules or requirements of any securities exchange or
inter-dealer quotation system on which the Common Stock may be listed or quoted); provided, further, that any
such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of
any Participant or any holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the
consent of the affected Participant, holder or beneficiary.
(b) Amendment
of Award Agreements. The Committee may, to the extent consistent with the terms of any applicable Award Agreement, waive
any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore
granted or the associated Award Agreement, prospectively or retroactively; provided that any such waiver, amendment,
alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any
Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected
Participant, unless the Committee determines, in its sole discretion, that the amendment is necessary for the Award to comply with
Code Section 409A; provided, further, that without stockholder approval, except as otherwise permitted under
Section 12 of the Plan, (i) no amendment or modification may reduce the Exercise Price of any Option or the Strike Price of
any SAR, (ii) the Committee may not cancel any outstanding Option or SAR where the Fair Market Value of the Common Stock underlying
such Option or SAR is less than its Exercise Price and replace it with a new Option or SAR, another Award or cash and (iii) the
Committee may not take any other action that is considered a “repricing” for purposes of the stockholder approval rules
of the applicable securities exchange or inter-dealer quotation system on which the Common Stock are listed or quoted.
14. General.
(a) Award
Agreements. Each Award under the Plan shall be evidenced by an Award Agreement, which shall be delivered to the Participant
(whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party
under contract with the Company)) and shall specify the terms and conditions of the Award and any rules applicable thereto, including,
without limitation, the effect on such Award of the death, disability or termination of employment or service of a Participant,
or of such other events as may be determined by the Committee. Except as the Plan otherwise provides, each Award may be made alone
or in addition or in relation to any other Award. The terms of each Award to a Participant need not be identical, and the Committee
need not treat Participants or Awards (or portions thereof) uniformly.
(b) Nontransferability.
(i) Each
Award shall be exercisable only by a Participant during the Participant’s lifetime, or, if permissible under Applicable Law,
by the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant other than by will or by the laws of descent and distribution and any such purported
assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or
an Affiliate; provided that the designation of a beneficiary shall not constitute an assignment, alienation, pledge,
attachment, sale, transfer or encumbrance.
(ii) Notwithstanding
the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock Options) to be transferred
by a Participant, without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award
Agreement to preserve the purposes of the Plan, to: (A) any person who is a “family member” of the Participant, as
such term is used in the instructions to Form S-8 under the Securities Act (collectively, the “Immediate Family Members”);
(B) a trust solely for the benefit of the Participant and his Immediate Family Members; (C) a partnership or limited liability
company whose only partners or stockholders are the Participant and his Immediate Family Members; or (D) any other transferee
as may be approved either (I) by the Board or the Committee in its sole discretion, or (II) as provided in the applicable Award
Agreement (each transferee described in clauses (A), (B), (C) and (D) above is hereinafter referred to as, a “Permitted
Transferee”); provided that the Participant gives the Committee advance written notice describing the terms
and conditions of the proposed transfer and the Committee notifies the Participant in writing that such a transfer would comply
with the requirements of the Plan.
(iii) The
terms of any Award transferred in accordance with the immediately preceding sentence shall apply to the Permitted Transferee and
any reference in the Plan, or in any applicable Award Agreement, to a Participant shall be deemed to refer to the Permitted Transferee,
except that (A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent
and distribution; (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be
in effect a registration statement on an appropriate form covering the Common Stock to be acquired pursuant to the exercise of
such Option if the Committee determines, consistent with any applicable Award Agreement, that such a registration statement is
necessary or appropriate; (C) the Committee or the Company shall not be required to provide any notice to a Permitted Transferee,
whether or not such notice is or would otherwise have been required to be given to the Participant under the Plan or otherwise;
and (D) the consequences of the termination of the Participant’s employment by, or services to, the Company or an Affiliate
under the terms of the Plan and the applicable Award Agreement shall continue to be applied with respect to the Participant, including,
without limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified
in the Plan and the applicable Award Agreement.
(c) Tax
Withholding and Deductions.
(i) A
Participant shall be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right and
is hereby authorized to deduct and withhold, from any cash, Common Stock, other securities or other property deliverable under
any Award or from any compensation or other amounts owing to a Participant, the amount (in cash, Common Stock, other securities
or other property) of any required taxes (up to the maximum statutory rate under Applicable Law as in effect from time to time
as determined by the Committee) and deduction in respect of an Award, its grant, vesting or exercise, or any payment or transfer
under an Award or under the Plan and to take such other action as may be necessary in the opinion of the Committee or the Company
to satisfy all obligations for the payment of such taxes.
(ii) Without
limiting the generality of clause (i) above, the Committee may, in its sole discretion, permit a Participant to satisfy, in whole
or in part, the foregoing tax and deduction liability by (A) the delivery of Common Stock (which are not subject to any pledge
or other security interest and are Mature Shares, except as otherwise determined by the Committee) owned by the Participant having
a Fair Market Value equal to such liability or (B) having the Company withhold from the number of Common Stock otherwise issuable
or deliverable pursuant to the exercise or settlement of the Award a number of shares with a Fair Market Value equal to such liability.
(d) No
Claim to Awards; No Rights to Continued Employment; Waiver. No employee of the Company or an Affiliate, or other
person, shall have any Claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award,
to be selected for a grant of any other Award. A Participant’s sole remedy for any Claim related to the Plan or any Award
shall be against the Company, and no Participant shall have any Claim or right of any nature against any Subsidiary or Affiliate
of the Company or any stockholder or existing or former director, officer or employee of the Company or any Subsidiary of the Company.
There is no obligation for uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions
of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to
each Participant and may be made selectively among Participants, whether or not such Participants are similarly situated. Neither
the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or
service of the Company or an Affiliate, nor shall it be construed as giving any Participant any rights to continued service on
the Board. The Company or any of its Affiliates may at any time dismiss a Participant from employment or discontinue any consulting
relationship, free from any liability or any Claim under the Plan, unless otherwise expressly provided in the Plan or any Award
Agreement. By accepting an Award under the Plan, a Participant shall thereby be deemed to have waived any Claim to continued exercise
or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided
under the Plan or any Award Agreement, notwithstanding any provision to the contrary in any written employment contract or other
agreement between the Company and its Affiliates and the Participant, whether any such agreement is executed before, on or after
the Date of Grant.
(e) International
Participants. With respect to Participants who reside or work outside of the United States of America, the Committee may
in its sole discretion amend the terms of the Plan or outstanding Awards with respect to such Participants in order to conform
such terms with the requirements of local law or to obtain more favorable tax or other treatment for a Participant, the Company
or its Affiliates.
(f) Designation
and Change of Beneficiary. Each Participant may file with the Committee a written designation of one or more persons as
the beneficiary(ies) who shall be entitled to receive the amounts payable with respect to an Award, if any, due under the Plan
upon his death. A Participant may, from time to time, revoke or change his beneficiary designation without the consent of any prior
beneficiary by filing a new designation with the Committee. The last such designation received by the Committee shall be controlling;
provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the
Committee prior to the Participant’s death, and in no event shall it be effective as of a date prior to such receipt. If
no beneficiary designation is filed by a Participant, the beneficiary shall be deemed to be his spouse or, if the Participant is
unmarried at the time of death, his estate.
(g) Termination
of Employment/Service. Unless determined otherwise by the Committee at any time following such event: (i) neither a temporary
absence from employment or service due to illness, vacation or leave of absence nor a transfer from employment or service with
the Company to employment or service with an Affiliate (or vice-versa) shall be considered a termination of employment or service
with the Company or an Affiliate; and (ii) if a Participant’s employment with the Company and its Affiliates terminates,
but such Participant continues to provide services to the Company and its Affiliates in a non-employee capacity (or vice-versa),
such change in status shall not be considered a termination of employment with the Company or an Affiliate.
(h) No
Rights as a Stockholder. Except as otherwise specifically provided in the Plan or any Award Agreement, no person shall
be entitled to the privileges of ownership in respect of Common Stock or other securities that are subject to Awards hereunder
until such shares have been issued or delivered to that person.
(i) Government
and Other Regulations.
(i) The
obligation of the Company to settle Awards in Common Stock or other consideration shall be subject to all Applicable Laws, rules,
and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of
any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering
to sell or selling, any Common Stock or other securities pursuant to an Award unless such shares have been properly registered
for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless the Company has received an opinion
of counsel, satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to an available
exemption therefrom and the terms and conditions of such exemption have been fully complied with. The Company shall be under no
obligation to register for sale under the Securities Act any of the Common Stock or other securities to be offered or sold under
the Plan. The Committee shall have the authority to provide that all certificates for Common Stock or other securities of the Company
or any Affiliate delivered under the Plan shall be subject to such stop transfer orders and other restrictions as the Committee
may deem advisable under the Plan, the applicable Award Agreement, the federal securities laws, or the rules, regulations and other
requirements of the Securities and Exchange Commission, any securities exchange or interdealer quotation system upon which such
shares or other securities are then listed or quoted and any other applicable federal, state, local or non-U.S. laws, and, without
limiting the generality of Section 9 of the Plan, the Committee may cause a legend or legends to be put on any such certificates
to make appropriate reference to such restrictions. Notwithstanding any provision in the Plan to the contrary, the Committee reserves
the right to add any additional terms or provisions to any Award granted under the Plan that it in its sole discretion deems necessary
or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the
Award is subject.
(ii) The
Committee may cancel an Award or any portion thereof if the Committee determines, in its sole discretion, that legal or contractual
restrictions and/or blockage and/or other market considerations would make the Company’s acquisition of Common Stock from
the public markets, the Company’s issuance of Common Stock or other securities to the Participant, the Participant’s
acquisition of Common Stock or other securities from the Company and/or the Participant’s sale of Common Stock to the public
markets, illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award denominated
in Common Stock in accordance with the foregoing, the Company shall pay to the Participant an amount equal to the excess of
(A) the aggregate Fair Market Value of the Common Stock subject to such Award or portion thereof that is canceled (determined as
of the applicable exercise date, or the date that the shares would have been vested or delivered, as applicable), over (B) the
aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition of
delivery of Common Stock (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable
following the cancellation of such Award or portion thereof.
(j) Payments
to Persons Other Than Participants. If the Committee shall find that any person to whom any amount is payable under the
Plan is unable to care for his or her affairs because of illness or accident, or is a minor, or has died, then any payment due
to such person or his estate (unless a prior Claim therefor has been made by a duly appointed legal representative) may, if the
Committee so directs the Company, be paid to his or her spouse, child, relative, an institution maintaining or having custody of
such person, or any other person deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to
payment. Any such payment shall be a complete discharge of the liability of the Committee and the Company therefor.
(k) Nonexclusivity
of the Plan. Neither the adoption of this Plan by the Board nor the submission of this Plan to the stockholders of the
Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements
as it may deem desirable, including, without limitation, the granting of stock options or other equity-based awards otherwise than
under this Plan, and such arrangements may be either applicable generally or only in specific cases.
(l) No
Trust or Fund Created. The Plan is intended to constitute an “unfunded” plan for incentive compensation. Neither
the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship
between the Company or any Affiliate, on the one hand, and a Participant or other person or entity, on the other hand. No provision
of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets
or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets, nor shall
the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained
or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors
of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services,
they shall have the same rights as other employees or service providers under general law.
(m) Reliance
on Reports. Each member of the Committee and each member of the Board shall be fully justified in acting or failing to
act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report
made by the independent public accountant of the Company and its Affiliates and/or any other information furnished in connection
with the Plan by any agent of or service provider to the Company or the Committee or the Board, other than himself.
(n) Relationship
to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any pension,
retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such
other plan.
(o) Governing
Law. The Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable
to contracts made and performed wholly within the State of Delaware, without giving effect to the conflict of laws provisions thereof.
(p) Severability.
If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable
in any jurisdiction or as to any person or entity or Award, or would disqualify the Plan or any Award under any law deemed applicable
by the Committee, such provision shall be construed or deemed amended to conform to the Applicable Laws, or if it cannot be construed
or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such
provision shall be construed or deemed stricken as to such jurisdiction, person or entity or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
(q) Obligations
Binding on Successors. The obligations of the Company under the Plan shall be binding upon any successor corporation or
organization resulting from the merger, amalgamation, consolidation or other reorganization of the Company, or upon any successor
corporation or organization succeeding to substantially all of the assets and business of the Company.
(r) Code
Section 409A.
(i) Notwithstanding
any provision of this Plan to the contrary, all Awards made under this Plan are intended to be exempt from or, in the alternative,
comply with Code Section 409A and the authoritative guidance thereunder, including the exceptions for stock rights and short-term
deferrals. The Plan shall be construed and interpreted in accordance with such intent. Each payment under an Award shall be treated
as a separate payment for purposes of Code Section 409A.
(ii) If
a Participant is a “specified employee” (as such term is defined for purposes of Code Section 409A) at the time of
his termination of service, no amount that is nonqualified deferred compensation subject to Code Section 409A and that becomes
payable by reason of such termination of service shall be paid to the Participant (or in the event of the Participant’s death,
the Participant’s representative or estate) before the earlier of (x) the first business day after the date that is
six months following the date of the Participant’s termination of service, and (y) within 30 days following the date
of the Participant’s death. For purposes of Code Section 409A, a termination of service shall be deemed to occur only if
it is a “separation from service” within the meaning of Code Section 409A, and references in the Plan and any Award
Agreement to “termination of service” or similar terms shall mean a “separation from service.” If any Award
is or becomes subject to Code Section 409A, unless the applicable Award Agreement provides otherwise, such Award shall be payable
upon the Participant’s “separation from service” within the meaning of Code Section 409A. If any Award is or
becomes subject to Code Section 409A and if payment of such Award would be accelerated or otherwise triggered under a Change in
Control, then the definition of Change in Control shall be deemed modified, only to the extent necessary to avoid the imposition
of any additional tax under Code Section 409A, to mean a “change in control event” as such term is defined for purposes
of Code Section 409A.
(iii) Any
adjustments made pursuant to Section 13 to Awards that are subject to Code Section 409A shall be made in compliance with the
requirements of Code Section 409A, and any adjustments made pursuant to Section 13 to Awards that are not subject to Code
Section 409A shall be made in such a manner as to ensure that after such adjustment, the Awards either (x) continue not to be subject
to Code Section 409A or (y) comply with the requirements of Code Section 409A.
(s) Notification
of Election Under Code Section 83(b). If any Participant, in connection with the acquisition of Common Stock under an Award,
makes the election permitted under Code Section 83(b), if applicable, the Participant shall notify the Company of the election
within ten days of filing notice of the election with the Internal Revenue Service.
(t) Expenses;
Gender; Titles and Headings; Interpretation. The expenses of administering the Plan shall be borne by the Company
and its Affiliates. Masculine pronouns and other words of masculine gender shall refer to both men and women. The titles and headings
of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan, rather
than such titles or headings shall control. Unless the context of the Plan otherwise requires, words using the singular or plural
number also include the plural or singular number, respectively; derivative forms of defined terms will have correlative meanings;
the terms “hereof,” “herein” and “hereunder” and derivative or similar words refer to this
entire Plan; the term “Section” refers to the specified Section of this Plan and references to “paragraphs”
or “clauses” shall be to separate paragraphs or clauses of the Section or subsection in which the reference occurs;
the words “include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation”; and the word “or” shall be disjunctive but not exclusive
(u) Other
Agreements. Notwithstanding the above, the Committee may require, as a condition to the grant of and/or the receipt of
Common Stock or other securities under an Award, that the Participant execute lock-up, stockholder or other agreements, as it may
determine in its sole and absolute discretion.
(v) Payments.
Participants shall be required to pay, to the extent required by Applicable Law, any amounts required to receive Common Stock
or other securities under any Award made under the Plan.
(w) Clawback;
Erroneously Awarded Compensation. All Awards (including on a retroactive basis) granted under the Plan are subject to the
terms of any Company forfeiture, incentive compensation recoupment, clawback or similar policy as it may be in effect from time
to time, as well as any similar provisions of Applicable Laws, as well as any other policy of the Company that may apply to the
Awards, such as anti-hedging or pledging policies, as they may be in effect from time to time. In particular, these policies and/or
provisions shall include, without limitation, (i) any Company policy established to comply with Applicable Laws (including,
without limitation, Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection
Act), and/or (ii) the rules and regulations of the applicable securities exchange or inter-dealer quotation system on which
the Common Stock or other securities are listed or quoted, and these requirements shall be deemed incorporated by reference into
all outstanding Award Agreements.
(x) No
Fractional Shares. No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan. The Committee
shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of fractional shares or whether fractional
shares or any rights thereto shall be forfeited, rounded, or otherwise eliminated.
(y) Paperless
Administration. If the Company establishes, for itself or using the services of a third party, an automated system for
the documentation, granting or exercise of Awards, such as a system using an internet website or interactive voice response, then
the paperless documentation, granting or exercise of Awards by a Participant may be permitted through the use of such an automated
system.
(z) Data
Privacy. As a condition for receiving any Award, each Participant explicitly and unambiguously consents to the collection,
use and transfer, in electronic or other form, of personal data as described in this Section 14(z) by and among the
Company and its Subsidiaries and Affiliates exclusively for implementing, administering and managing the Participant’s participation
in the Plan. The Company and its Subsidiaries and Affiliates may hold certain personal information about a Participant, including
the Participant’s name, address and telephone number; birthdate; social security, insurance number or other identification
number; salary; nationality; job title(s); any Common Stock held in the Company or its Subsidiaries and Affiliates;
and Award details, to implement, manage and administer the Plan and Awards (the “Data”). The Company and its
Subsidiaries and Affiliates may transfer the Data amongst themselves as necessary to implement, administer and manage a Participant’s
participation in the Plan, and the Company and its Subsidiaries and Affiliates may transfer the Data to third parties assisting
the Company with Plan implementation, administration and management. These recipients may be located in the Participant’s
country, or elsewhere, and the Participant’s country may have different data privacy laws and protections than the recipients’
country. By accepting an Award, each Participant authorizes the recipients to receive, possess, use, retain and transfer the Data,
in electronic or other form, to implement, administer and manage the Participant’s participation in the Plan, including any
required Data transfer to a broker or other third party with whom the Company or the Participant may elect to deposit any Common
Stock. The Data related to a Participant will be held only as long as necessary to implement, administer, and manage the Participant’s
participation in the Plan. A Participant may, at any time, view the Data that the Company holds regarding the Participant, request
additional information about the storage and processing of the Data regarding the Participant, recommend any necessary corrections
to the Data regarding the Participant or refuse or withdraw the consents in this Section 14(z) in writing, without
cost, by contacting the local human resources representative. The Company may cancel Participant’s ability to participate
in the Plan and, in the Committee’s discretion, the Participant may forfeit any outstanding Awards if the Participant refuses
or withdraws the consents in this Section 14(z).
(aa) Broker-Assisted
Sales. In the event of a broker-assisted sale of Common Stock in connection with the payment of amounts owed by a Participant
under or with respect to the Plan or Awards: (a) any Common Stock to be sold through the broker-assisted sale will be sold on the
day the payment first becomes due, or as soon thereafter as practicable; (b) the Common Stock may be sold as part of a block
trade with other Participants in the Plan in which all participants receive an average price; (c) the applicable Participant
will be responsible for all broker’s fees and other costs of sale, and by accepting an Award, each Participant agrees to
indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale; (d) to the
extent the Company or its designee receives proceeds of the sale that exceed the amount owed, the Company will pay the excess in
cash to the applicable Participant as soon as reasonably practicable; (e) the Company and its designees are under no obligation
to arrange for the sale at any particular price; and (f) if the proceeds of the sale are insufficient to satisfy the Participant’s
applicable obligation, the Participant may be required to pay immediately upon demand to the Company or its designee an amount
in cash sufficient to satisfy any remaining portion of the Participant’s obligation.
Exhibit 10.11
EXECUTION VERSION
Employment Agreement
This Employment Agreement
(this “Agreement”) is dated as of June 22, 2020 (the “Commencement Date”), and
is made by and between Eos Energy Storage LLC, a Delaware limited liability company (the “Company”), and
Joseph Mastrangelo (“Executive”).
W i t n e s s e t h:
WHEREAS, the Company
and Executive are currently parties to that certain letter agreement, dated July 6, 2018 (the “Original Offer Letter”),
under which Executive provides services to the Company as a Board Advisor;
WHEREAS, the Company
and Executive desire to terminate the Original Offer Letter and enter into this Agreement in lieu thereof; and
WHEREAS, the Company
desires to employ Executive to serve as the Chief Executive Officer of the Company, and Executive desires to be so employed, in
each case, on the terms and conditions set forth herein.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants and promises contained herein, and for other good and valuable
consideration, the Company and Executive hereby agree as follows:
1. Agreement
to Employ; No Conflicts
Upon the terms and
subject to the conditions of this Agreement, the Company hereby agrees to employ Executive, and Executive hereby accepts such employment
by the Company. Executive represents and warrants that (a) Executive is entering into this Agreement voluntarily, and that Executive’s
employment hereunder and compliance with the terms and conditions hereof will not conflict with or result in the breach by Executive
of any agreement to which Executive is a party or by which Executive may be bound; (b) Executive has not violated, and in connection
with Executive’s employment with the Company will not violate, any non-competition, non-solicitation or other similar covenant
or agreement by which Executive is or may be bound; and () in connection with Executive’s employment by the Company, Executive
will not use any confidential or proprietary information Executive may have obtained in connection with Executive’s services
to any prior employer.
2. Term;
Position and Responsibilities
(a) Term.
Unless Executive’s employment shall sooner terminate pursuant to Section 7, the Company shall employ Executive for a term
commencing on the Commencement Date and ending on the third anniversary thereof (the “Initial Term”). Effective
upon the expiration of the Initial Term and of each Additional Term (as defined below), unless Executive’s employment shall
sooner terminate pursuant to Section 7, Executive’s employment hereunder shall be deemed to be automatically extended, upon
the same terms and conditions, for an additional period of one year (each, an “Additional Term”), in
each such case, commencing upon the expiration of the Initial Term or the then current Additional Term, as the case may be, unless,
at least 60 days prior to the expiration of the Initial Term or such Additional Term, as the case may be, either party hereto shall
have notified the other party thereto in writing that such extension shall not take effect. The period during which Executive is
employed pursuant to this Agreement shall be referred to as the “Employment Period”.
(b) Position
and Responsibilities. During the Employment Period, Executive shall serve as the Chief Executive Officer of the Company, reporting
to the Board of Directors of the Company (the “Board”). Executive shall have such duties and responsibilities
as are customarily assigned to individuals serving in such position, and such other duties consistent with Executive’s position
as the Board specifies from time to time. Executive shall devote all of Executive’s skill, knowledge and business time to
the conscientious performance of such duties and responsibilities, except for vacation time (as set forth in Section 6(b)), absence
for sickness or similar disability, and time spent performing services for any charitable, religious or community organizations,
so long as such services do not materially interfere with the performance of Executive’s duties hereunder.
(c) Board
Member. The Company shall use its best efforts to cause Executive to be elected to serve as a member of the Board effective
as soon as practicable after the Commencement Date, with such authority, duties and responsibilities associated with a member of
the Board under the applicable terms of the Operating Agreement (as defined below), and to serve until Executive’s successor
has been duly elected and qualified, or until Executive’s earlier death, resignation, or removal, in each case, in accordance
with the applicable terms of the Operating Agreement.
3. Base
Salary
As compensation for
the services to be performed by Executive during the Employment Period, the Company shall pay Executive an initial base salary
at an annualized rate of $400,000, payable in accordance with the Company’s standard payroll practices. The amount of the
Base Salary will be reviewed by the Board annually during the Employment Period, which may increase (but not decrease) Executive’s
Base Salary in its sole discretion at that time. The annual base salary payable to Executive under this Section 3 shall hereinafter
be referred to as the “Base Salary”.
4. Incentive
Compensation
(a) Annual
Cash Bonus. Beginning in calendar year 2020, for each full calendar year of the Company that ends during the Employment Period
(prorated for calendar year 2020), Executive shall have an annual cash bonus opportunity ranging from 50% to 100% of Base Salary
(the “Annual Bonus”), which shall be payable if 100% of the Performance Targets (as defined below) are
achieved; provided, that if actual performance for such period exceeds or is less than 100% of the Performance Targets,
the amount of the Annual Bonus shall be adjusted positively or negatively, respectively, as determined by the Board by mathematical
interpolation, subject to a maximum Annual Bonus and a minimum percentage of the Performance Targets required to be achieved prior
to payment of any Bonus, in each case, as determined by the Board in its sole discretion. For purposes of this Agreement, “Performance
Targets” means the Company and individual performance objectives established by the Board for the applicable calendar
year, as set forth on Exhibit A attached hereto. Any Annual Bonus that becomes payable pursuant to this Section 4(a) shall
be paid to Executive within the calendar year following the year to which such Annual Bonus relates and within 30 days of the Board’s
approval of audited financial statements of the Company for the calendar year to which such Annual Bonus relates; provided,
that Executive is employed by the Company on the date such Annual Bonus is to be paid. Additionally, during the Employment Period,
the Board may determine to grant Executive additional bonus opportunities in such amounts and subject to such terms as the Board
shall determine in its sole discretion from time to time.
(b) Equity
Compensation.
(i) Initial
Options. Within 30 days after the Commencement Date, the Company will grant to Executive an option to purchase 12,000,000 of
the Common Units (as defined in the Operating Agreement (as defined below)) of the Company. Such option shall be issued in accordance
with the Company’s 2012 Equity Incentive Plan, as amended from time to time (the “Plan”) and the
Company’s Sixth Amended and Restated Limited Liability Company Agreement, dated as of April 20, 2018, as amended from time
to time (the “Operating Agreement”), and will be evidenced by, and subject to, an option agreement entered
into by Executive and the Company. Such option shall have an exercise price equal to $0.50 per Common Unit, will vest annually
over three years beginning on the first anniversary of the Commencement Date, and will fully vest in the event of the consummation
of a Change in Control (as defined in the Plan) in which the Preferred Members (as defined in the Operating Agreement) as of the
date hereof transfer 100.0% of their ownership interest (as defined in the Operating Agreement) to a bona fide third-party and
the Preferred Members receive a positive return on their Preferred Units in such transfer (a “Preferred Member Change
in Control”).
(ii) Performance
Options.
(A) Within
30 days after the Commencement Date, the Company will grant to Executive an additional one-time option to purchase 6,000,000 Common
Units of the Company. Such option shall be issued in accordance with the Plan and the Operating Agreement, and will be evidenced
by, and subject to, an option agreement entered into by Executive and the Company. Such option shall have an exercise price equal
to $0.50 per Common Unit, and will fully vest on the day the Board determines in its sole discretion that the Company has [THE
COMPANY SUCCESFULY CLOSES A SERIES E TRANSACTION], subject to Executive’s continuous employment with the Company through
the determination date (and, if such determination is not made, such option will not vest, and will be forfeited automatically
as of the last day of the Initial Term without any consideration being paid therefor).
(iii) Additional
Discretionary Options. During the Employment Period, the Board may determine, in its sole discretion, to grant Executive additional
options to purchase Common Units of the Company in such number and subject to such terms as the Board shall determine in its sole
discretion from time to time. Any such grant of additional options shall be issued in accordance with the Plan and the Operating
Agreement, and will be evidenced by an option agreement entered into by Executive and the Company. Such option shall have an exercise
price equal to no less than the then-current fair market value of one common unit of the Company as of the grant date and will
be subject to vesting as determined by the Board in its sole discretion.
(iv) Tag-Along
Right.
(A) Without
limiting the generality of the applicable provisions of the Operating Agreement, in the event of a proposed Preferred Member Change
in Control occurring during the Employment Period (a “Tag Along Transfer”), the Company (on behalf of
the Preferred Members) shall deliver prompt written notice to Executive of any such Tag-Along Transfer (the “Tag Along
Notice”), specifying in reasonable detail the identity of the prospective transferee(s), the proposed amount and
form of consideration for the Units (as defined in the Operating Agreement) being transferred, and any other material terms and
conditions of such Tag-Along Transfer. Executive shall be entitled to sell in the Tag-Along Transfer, at the same price and on
the same terms under which the Units are proposed to be sold, all of the Common Units then held by Executive immediately prior
to such Tag-Along Transfer (the “Tag Along Right”). Executive may exercise the Tag-Along Right by delivering
to the Company (on behalf of the Preferred Members) notice of such election during the ten (10) business day period immediately
following the delivery of the Tag-Along Notice.
(B) The
Company (on behalf of the Preferred Members) shall use reasonable commercial efforts to obtain the agreement of the prospective
transferee(s) to the participation of the Executive in any such Tag-Along Transfer. If the Company (on behalf of the Preferred
Members) is unable to cause the prospective transferee(s) to purchase all of the shares proposed to be transferred by the Preferred
Members and Executive, then the number of shares that the Preferred Members and Executive shall be permitted to sell in such Tag-Along
Transfer shall be scaled back pro rata based on the number of shares held individually by the Preferred Members and Executive relative
to the aggregate number of shares held by both the Preferred Members and Executive in total.
(C) In
the event Executive elects to exercise the Tag-Along Right, such transfer shall be governed by the terms and provisions of the
contract of sale or the terms of sale between the Preferred Members and the prospective transferee(s). In the event Executive fails
to timely exercise the Tag-Along Right, or fails to timely close with respect to such right, then the Preferred Members will have
the right, in the sole discretion, to sell the Units to be sold to such prospective transferee(s), on substantially the same terms
as set forth in the contract of sale or the terms of sale with respect to such Tag-Along Transfer, free and clear of all of Executive’s
rights to participate in such Tag-Along Transfer.
5. Employee
Benefits
During the Employment
Period, Executive (and, to the extent eligible, Executive’s dependents and beneficiaries) shall be entitled to participate
in any defined contribution plan, any insurance program and any medical and other health benefit plan, in each case, sponsored
by the Company for its employees on terms and conditions set forth in such programs and plans (as amended from time to time). Without
limiting the generality of the foregoing, if Executive elects to not participate in the Company’s medical and other health
benefit plans (the “Company Health Plans”), as determined by Executive in Executive’s sole discretion,
the Company shall pay for Executive’s and Executive’s family’s current medical and other health benefit plans
in Italy in lieu of participating in any of the Company Health Plans, in an amount not to exceed a cumulative maximum of $17,000
per calendar year, which amount shall be taxable as wages to Executive and subject to applicable withholding under applicable law
and regulation.
6. Expenses;
Vacation; Relocation; Housing
(a) Business
Travel, Lodging, etc. The Company shall reimburse Executive for reasonable business, travel (business class airfare shall be
considered reasonable for any flight (inclusive of connecting flights) with a flight time longer than five hours), lodging, meal
and other reasonable expenses incurred by Executive in connection with Executive’s performance of services hereunder upon
submission of evidence, satisfactory to the Company, of the incurrence and purpose of each such expense, and otherwise in accordance
with the Company’s expense policy applicable to its employees as in effect from time to time.
(b) Vacation.
During the Employment Period, Executive shall be entitled to four weeks of paid personal time off per calendar year (prorated for
calendar year 2019), which shall accrue at the rate of one work week for each three complete months worked, in accordance with
the Company’s paid personal time off policy applicable to its employees as in effect from time to time
7. Termination
of Employment
(a) Termination
Due to Death or Disability. During the Employment Period, Executive’s employment shall automatically terminate in the
event of Executive’s death, and may be terminated by the Company due to Executive’s Disability (as defined below).
For the purposes of this Agreement, “Disability” shall mean a physical or mental disability that prevents,
regardless of any reasonable accommodation, the performance by Executive of Executive’s duties under this Agreement for a
continuous period of 90 days or longer, or for 180 days or more in any 12-month period.
(b) Termination
by the Company. During the Employment Period, the Company may terminate Executive’s employment with the Company with
or without Cause. For purposes of this Agreement, “Cause” shall mean (a) any failure by Executive to
perform Executive’s material duties hereunder (other than any such breach or failure due to Executive’s physical or
mental illness) and the continuance of such failure for more than 30 days following Executive’s receipt of written notice
from the Company specifying such failure; (b) any failure by Executive to cooperate, if reasonably requested by the Company, with
any investigation or inquiry into Executive’s or the Company’s business practices, whether internal or external, including,
but not limited to, Executive’s refusal to be deposed or to provide testimony at any trial or inquiry; (c) Executive engaging
in fraud, willful misconduct, gross negligence or dishonesty that has caused or is reasonably expected to result in material injury
to the Company or any of its affiliates; (d) any breach by Executive of any fiduciary duty owed to the Company or any of its affiliates
or members; (e) Executive’s conviction of, or entering a plea of guilty or nolo contendere to, a crime that constitutes
a felony; or (f) any material breach by Executive of any of Executive’s obligations hereunder or under any other written
agreement or covenant with the Company or any of its affiliates, which, if curable, continues for more than 30 consecutive days
after the Company notifies Executive in writing of such breach. A termination for Cause shall include a reasonable determination
by the Company following the termination of the Employment Period that circumstances existed during the Employment Period that
would have justified a termination by the Company for Cause.
(c) Termination
by Executive. During the Employment Period, Executive may terminate Executive’s employment with the Company with or without
Good Reason. For purposes of this Agreement, “Good Reason” shall mean a termination by Executive of Executive’s
employment hereunder if (i) any of the following events occur without Executive’s consent, (ii) within 30 days after Executive
learns of the occurrence of such event, Executive notifies the Company in writing that such event has occurred describing such
event in reasonable detail and demanding cure, and (iii) such event is not cured within 30 days after Executive so notifies the
Company: (a) a material diminution in Executive’s authority, duties or responsibilities that Executive has on the date hereof,
(b) a reduction in the rate of Base Salary, other than in connection with an across the board reduction of the base salaries of
senior executives of the Company generally, or (c) any material breach by the Company of any of its material obligations hereunder.
(d) Notice
of Termination. Any termination of Executive’s employment by the Company pursuant to Section 7(a) (other than in the
event of Executive’s death) or Section 7(b) or by Executive pursuant to Section 7(c) shall be communicated by a written Notice
of Termination addressed to the other party to this Agreement. A “Notice of Termination” shall mean a
notice stating that Executive’s employment with the Company has been or will be terminated.
(e) Date
of Termination. As used in this Agreement, the term “Date of Termination” shall mean (i) if Executive’s
employment is terminated by Executive’s death, the date of Executive’s death; (ii) if Executive’s employment
is terminated by the Company pursuant to Section 7(a) due to Executive’s Disability, 30 days after the date on which the
Notice of Termination is given; provided, that, if Executive shall have returned to the performance of Executive’s
duties on a full-time basis during such 30-day period, such Notice of Termination shall be of no force or effect; (iii) if Executive’s
employment is terminated by the Company for Cause or by Executive for Good Reason, the date any applicable cure period expires
(and, if there is no applicable cure period, the date specified in the Notice of Termination); provided, that if
a party is entitled to cure the nature of such termination and so cures prior to the expiration of the applicable cure period,
the Notice of Termination provided to such curing party shall be of no force or effect; and (iv) if Executive’s employment
is terminated for any other reason, the date specified in the Notice of Termination (which shall be 60 days after the date of such
notice) and, if no such notice is given, 60 days after the date of termination of employment.
(f) Payments
Upon Certain Terminations.
(i) Termination
Without Cause or for Good Reason. If (A) the Company shall terminate Executive’s employment without Cause or (B) Executive
shall terminate Executive’s employment for Good Reason, in each case, during the Employment Period, the Company shall pay
to Executive:
(A) any
accrued and unpaid Base Salary and vacation earned through the Date of Termination, which shall be paid on the tenth day after
the Date of Termination (or, if such day is not a business day, the next business day after such day); plus
(B) as
liquidated damages in respect of claims based on provisions of this Agreement and provided that Executive executes and delivers
(and does not revoke) a general release of all claims in form and substance reasonably satisfactory to the Company within 60 days
following the Date of Termination twelve months’ Base Salary which shall be paid in periodic installments on the Company’s
regular payroll dates, beginning with the next payroll date immediately following the expiration of the 60th day following the
Date of Termination.
(ii) Termination
for Any Other Reason. If Executive’s employment is terminated for any reason other than those specified in Section 7(f)(i)
during the Employment Period, the Company shall pay Executive on the tenth day after the Date of Termination (or, if such day is
not a business day, the next business day after such day), any accrued and unpaid Base Salary and vacation earned through the Date
of Termination.
(iii) Effect
of Termination on Other Plans and Programs. In the event that Executive’s employment with the Company is terminated for
any reason, Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan,
policy, program or practice of the Company in which Executive was a participant immediately prior to the Date of Termination in
accordance with the terms thereof; provided, that,
if Executive’s employment is terminated without Cause or for Good Reason, Executive shall not be entitled to receive any
payments or benefits under any such plan, policy, program or practice providing any severance or incentive compensation and the
provisions of this Section 7 shall supersede the provisions of any such plan, policy, program or practice.
(g) Resignation
Upon Termination. Effective as of the date of Executive’s termination of employment with the Company, Executive shall
resign, in writing, from all positions then held by Executive with the Company and its affiliates unless otherwise requested by
the Company and agreed to by Executive.
(h) Cessation
of Professional Activity. Upon delivery of a Notice of Termination by any party or a notice pursuant to Section 2(a), the Company
may relieve Executive of Executive’s responsibilities described in Section 2(b) and require Executive to immediately cease
all professional activity on behalf of the Company, in any such case, without such suspension or cessation constituting a termination
by the Company without Cause or providing Executive with grounds to terminate Executive’s employment for Good Reason.
8. Restrictive
Covenants
(a) Unauthorized
Disclosure. During the Employment Period and following any termination thereof, without the prior written consent of a duly
authorized representative of the Company except to the extent required by an order of a court having competent jurisdiction or
under subpoena from an appropriate government agency, in which event, Executive shall use Executive’s best efforts to consult
with the Company prior to responding to any such order or subpoena, and except as authorized in performance of Executive’s
duties hereunder, Executive shall not use or disclose any confidential or proprietary trade secrets, customer lists, drawings,
designs, marketing plans, management organization information (including, but not limited to, data and other information relating
to the Company or any affiliate thereof (the “Company Group”), or to the members of the boards of directors
of the Company Group, or to the management of the Company Group), operating policies or manuals, business plans, financial records,
or other financial, commercial, business or technical information (i) relating to the Company Group or (Li) that the Company Group
may receive belonging to customers or others who do business with the Company Group (collectively, “Confidential Information”)
to any third Person (defined below) unless such Confidential Information has been previously disclosed to the public generally
or is in the public domain (in each case, other than by reason of Executive’s breach of this Section 8(a)).
(b) Non-Competition.
During the period beginning on the date hereof and ending twelve months after the termination of Executive’s employment with
the Company (for the avoidance of doubt, provided the Company satisfies its obligations to Executive under Section 7(f)) (the “Restriction
Period”), Executive shall not, directly or indirectly, own any interest in, operate, join, control or participate
as a partner, shareholder, member, director, manager, officer, or agent of, enter into the employment of, act as a consultant to,
or perform any services for any entity that is in competition with the Business (as defined below) of the Company Group in any
jurisdiction in which the Company Group is engaged at the time of Executive’s termination of employment. For purposes of
this Agreement, “Business” means the development and manufacture of energy storage products and solutions,
including, without limitation, grid-scale energy storage, DC battery systems, electric utilities, applications in commercial and
industrial, micro grid, telecom, military, renewables, and residential markets, and the provision of services related thereto.
(c) Non-Solicitation
of Employees. During the Restriction Period (for the avoidance of doubt, provided the Company satisfies its obligations to
Executive under Section 7(f)), Executive shall not, directly or indirectly, for Executive’s own account or for the account
of any other natural person, partnership, limited liability company, association, corporation, company, trust, business trust,
governmental authority or other entity (each, a “Person”) in any jurisdiction in which the Company Group
has commenced or has documented plans, as of the termination of Executive’s employment with the Company, to commence operations
during the Employment Period, (i) solicit for employment, employ or otherwise interfere with the relationship of the Company Group
with any natural person throughout the world who is or was employed by or otherwise engaged to perform services for the Company
Group at any time (a) during the Employment Period, in the case of such prohibited activity occurring during such time, or (b)
during the twelve month period preceding such prohibited activity, in the case of such prohibited activity occurring during the
Restriction Period but after the date of Executive’s termination of employment with the Company, in each case, other than
any such solicitation or employment on behalf of or at the request of the Company Group during the Employment Period; or (ii) induce
any employee of the Company Group to engage in any activity which Executive is prohibited from engaging in under any of this Section
8 or to terminate such employee’s employment with the Company.
(d) Non-Solicitation
of Business Relationships. During the Restriction Period (for the avoidance of doubt, provided the Company satisfies its obligations
to Executive under Section 7(f)), Executive shall not, directly or indirectly, for Executive’s own account or for the account
of any other Person, in any jurisdiction in which the Company Group has commenced or has made plans to commence operations, solicit,
interfere with, or otherwise attempt to establish any business relationship of a nature that is competitive with the Business or
relationship of the Company Group with any Person throughout the world which is or was a customer, client, distributor, supplier
or vendor of the Business of the Company Group (x) at any time during the Employment Period (in the case of such prohibited activity
occurring during such time) or (y) during the twelve month period preceding such prohibited activity (in the case of such prohibited
activity occurring during the Restriction Period but after the date of Executive’s termination of employment with the Company),
other than any such activity on behalf of or at the request of the Company Group during the Employment Period.
(e) Works
for Hire.
(i) Generally.
Executive agrees that the Company shall own all right, title and interest (including, but not limited to, patent rights, copyrights,
trade secret rights and other rights throughout the world) in any inventions, works of authorship, ideas or information made or
conceived or reduced to practice, in whole or in part, by Executive (either alone or with others) during the Employment Period
(collectively “Developments”); provided, however, that the Company shall not own
Developments for which no equipment, supplies, facility, trade secret information or Confidential Information of the Company was
used and which were developed entirely on Executive’s time, and (A) which do not relate (I) to the business of the Company
Group or (II) to the actual or demonstrably anticipated research or development of the Company Group, and (B) which do not result
from any work performed by Executive for the Company.
(ii) Disclosure;
Assignment. Subject to Section 8(e)(i), Executive will promptly and fully disclose to the Company, or any persons designated
by it, any and all Developments made or conceived or reduced to practice or learned by Executive, either alone or jointly with
others during the Employment Period. Executive hereby assigns all right, title and interest in and to any and all of these Developments
to the Company. Executive shall further assist the Company, at the Company’s expense, to further evidence, record and perfect
such assignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Executive
hereby irrevocably designates and appoints the Company and its agents as attorneys-in-fact to act for and on Executive’s
behalf to execute and file any document and to do all other lawfully permitted acts to further the purposes of the foregoing with
the same legal force and effect as if executed by Executive.
(iii) Copyright
Act; Moral Rights. In addition, and not in contravention of Section 8(e)(i) or Section 8(e)(ii), Executive acknowledges that
all original works of authorship which are made by Executive (solely or jointly with others) within the scope of employment and
which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright
Act (17 USC §101). To the extent allowed by law, this Section 8(e) includes all rights of paternity, integrity, disclosure
and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively, “Moral
Rights”). To the extent Executive retains any such Moral Rights under applicable law, Executive hereby waives such
Moral Rights and consents to any action consistent with the terms of this Agreement with respect to such Moral Rights, in each
case, to the full extent of such applicable law. Executive will confirm any such waivers and consents from time to time as requested
by the Company.
(iv) Authorized
Disclosure. Section 1833(b) of Title 18 of the United States Code states “An individual shall not be held criminally
or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made (a) in confidence
to a Federal, State, or local government official, either directly or indirectly, or to an attorney and (b) solely for the purposes
of reporting or investigating a suspended violation of law or (ii) is made in a complaint or other document filed in a lawsuit
or other proceeding, if such filing is made under seal.” Accordingly, the Company and Executive have the right to disclose
in confidence trade secrets to Federal, State, and local government officials, or to an attorney, for the sole purpose of reporting
or investigating a suspected violation of law. The Company and Executive also have the right to disclose trade secrets in a document
filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Nothing
in this Agreement is intended to conflict with Section 1833(b) of Title 18 of the United States Code or create liability for disclosures
of trade secrets that are expressly allowed by Section 1833(b) of Title 18 of the United States Code.
(f) Mutual
Nondisparagement. Executive agrees that Executive shall neither, directly or indirectly, engage in any conduct or make any
statement (including through social media) disparaging or criticizing in any way the Company Group, or any of their personnel,
nor engage in any other conduct or make any other statement that could be reasonably expected to impair the goodwill of the Company
Group, the reputation of the Company Group, in each case, except to the extent required by law, and then only after consultation
with the Company to the extent possible, or to enforce the terms of this Agreement. The Company agrees that it shall not, and the
Company agrees that is shall instruct its senior executives and officers to not, directly or indirectly, engage in any conduct
or make any statement (including through social media) disparaging or criticizing in any way Executive, nor engage in any other
conduct or make any other statement that could be reasonably expected to impair the goodwill of Executive, the reputation of Executive,
in each case, (i) except to the extent required by law, and then only after consultation with Executive to the extent possible,
(ii) to enforce the terms of this Agreement, or (iii) from discussing Executive in connection with normal performance evaluations.
(g) Return
of Documents. In the event of the termination of Executive’s employment, Executive shall promptly deliver to the Company
(i) all property of the Company Group then in Executive’s possession; and (ii) all documents and data of any nature and in
whatever medium of the Company Group, and Executive shall not take with Executive any such property, documents or data or any reproduction
thereof, or any documents containing or pertaining to any Confidential Information.
(h) Confidentiality
of Agreement; Governmental Agency Exception. The parties to this Agreement agree not to disclose its terms to any Person, other
than their attorneys, accountants, financial advisors or, in Executive’s case, members of Executive’s immediate family
or, in the Company’s case, for any reasonable purpose that is reasonably related to its business operations; provided,
that this Section 8(h) shall not be construed to prohibit any disclosure required by law or in any proceeding to enforce the terms
and conditions of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, this Agreement does not
limit Executive’s ability to communicate with any government agency or otherwise participate in any investigation or proceeding
that may be conducted by any government agency, including providing documents or other information, without notice to the Company
or its affiliates. This Agreement does not limit Executive’s right to receive an award for information provided to any government
agencies.
9. Certain
Acknowledgments
Executive acknowledges
and agrees that Executive will have a prominent role in the development of the goodwill of the Company Group, and has and will
establish and develop relations and contacts with the principal business relationships of the Company Group in the United States
of America and the rest of the world, all of which constitute valuable goodwill of, and could be used by Executive to compete unfairly
with, the Company Group and that (i) in the course of Executive’s employment with the Company, Executive will obtain confidential
and proprietary information and trade secrets concerning the business and operations of the Company Group in the United States
of America and the rest of the world that could be used to compete unfairly with the Company Group; (ii) the covenants and restrictions
contained in Section 8 arc intended to protect the legitimate interests of the Company Group in their respective goodwill, trade
secrets and other confidential and proprietary information; and (iii) Executive desires to be bound by such covenants and restrictions.
10. Entire
Agreement
This Agreement constitutes
the entire agreement between the Company and Executive with respect to the subject matter hereof, and supersedes all undertakings
and agreements, whether oral or in writing, previously entered into by the Company and Executive with respect thereto, including,
without limitation, the Original Offer Letter. All prior correspondence and proposals (including, but not limited to, summaries
of proposed terms and the Original Offer Letter) and all prior offer letters, promises, representations, understandings, arrangements
and agreements relating to such subject matter (including, but not limited to, those made to or with Executive by any other person)
are merged herein and superseded hereby.
11. General
Provisions
(a) Binding
Effect; Assignment. This Agreement shall be binding on and inure to the benefit of the Company and its respective successors
and permitted assigns. This Agreement shall also be binding on and inure to the benefit of Executive and Executive’s heirs,
executors, administrators and legal representatives. This Agreement shall not be assignable by any party hereto without the prior
written consent of the other parties hereto, except as provided pursuant to this Section 11(a). The Company may affect such an
assignment without prior written approval of Executive upon the transfer of all or substantially all of its business and/or assets
(by whatever means).
(b) Governing
Law; Waiver of Jury Trial.
(i) Governing
Law; Consent to Jurisdiction. This Agreement shall be governed in all respects, including as to interpretation, substantive
effect and enforceability, by the internal laws of the State of New Jersey, without regard to conflicts of laws provisions thereof
that would require application to the laws of another jurisdiction other than those that mandatorily apply. Each party hereby irrevocably
submits to the jurisdiction of the courts of the State of New Jersey and the federal courts of the United States of America located
in the District of New Jersey solely in respect of the interpretation and enforcement of the provisions of this Agreement and in
respect of the transactions contemplated hereby. Each party hereby waives and agrees not to assert, as a defense in any action,
suit or proceeding for the interpretation and enforcement hereof, or in respect of any such transaction, that such action, suit
or proceeding may not be brought or is not maintainable in such courts or that the venue thereof may not be appropriate or that
this Agreement may not be enforced in or by such courts. Each party hereby consents to and grants any such court jurisdiction over
the person of such parties and over the subject matter of any such dispute and agree that the mailing of process or other papers
in connection with any such action or proceeding in the manner provided in Section 11(f) or in such other manner as may be permitted
by law, shall be valid and sufficient service thereof.
(ii) Waiver
of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each party hereby irrevocably and unconditionally waives any right such party may
have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this Agreement, or the
breach, termination or validity of this Agreement, or the transactions contemplated by this Agreement. Each party certifies and
acknowledges that (A) no representative, agent or attorney of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the foregoing waiver; (B) each such party understands and has
considered the implications of this waiver; and (C) each such party makes this waiver voluntarily.
(c) Taxes.
All amounts payable and benefits provided hereunder shall be subject to any and all applicable taxes, as required by applicable
Federal, state, local and foreign laws and regulations.
(d) Amendments;
Waiver. No provision of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge
is approved by a Person authorized by the Company and is agreed to in writing by Executive and, in the case of any such modification,
waiver or discharge affecting the rights or obligations of the Company, is approved by a Person authorized thereby. No waiver by
any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No waiver of any provision of this Agreement shall be implied from any course of dealing
between or among the parties hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or series
of occasions.
(e) Legal
Advice; Severability; Blue Pencil. Executive acknowledges that Executive has been advised to seek independent legal counsel
for advice regarding the effect of the provisions of this Agreement, and has either obtained such advice of independent legal counsel,
or has voluntarily and without compulsion elected to enter into and be bound by the terms of this Agreement without such advice
of independent legal counsel. In the event that any one or more of the provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein
shall not be affected thereby. Executive and the Company agree that the covenants contained in Section 8 are reasonable covenants
under the circumstances, and further agree that if, in the opinion of any court of competent jurisdiction such covenants are not
reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions
of these covenants as to the court shall appear not reasonable and to enforce the remainder of these covenants as so amended.
(f) Notices.
Any notice or other communication required or permitted to be delivered under this Agreement shall be (A) in writing; (B) delivered
personally, by facsimile, by courier service or by certified or registered mail, first class postage prepaid and return receipt
requested; (C) deemed to have been received on the date of delivery or, if so mailed, on the third business day after the mailing
thereof; and (D) if so mailed or delivered by courier service, addressed as follows (or to such other address as the party entitled
to notice shall hereafter designate in accordance with the terms hereof):
(I)
If to the Company:
Eos Energy Solutions LLC
3920 Park Avenue
Edison, NJ 08820
Attn: Russell Stidolph, Chairman
Email: rstidolph@altenergyllc.com
With a copy (which shall not
constitute notice) to:
Morrison Cohen LLP
909 Third Avenue
New York, NY 10022
Attn: David P. LaGalia, Esq.
Anthony Saur, Esq.
Fax: (212) 735-8708
(II) If
to Executive, at Executive’s residential address as currently on file with the Company.
(g) Survival.
The Company and Executive hereby agree that certain provisions of this Agreement, including, but not limited to, Sections 8, 9,
10 and 11, shall survive the expiration of the Employment Period in accordance with their terms.
(h) Further
Assurances. Each party hereto agrees with the other party hereto that it will cooperate with such other party and will execute
and deliver, or cause to be executed and delivered, all such other instruments and documents, and will take such other actions,
as such other party may reasonably requests from time to time, to effectuate the provisions and purpose of this Agreement.
(i) Section
409A. The parties intend that any amounts payable hereunder comply with or are exempt from Section 409A of the Internal Revenue
Code of 1986, as amended (“Section 409A”) (including under Treasury Regulation §§ 1.409A-1(b)(4) (“short-term
deferrals”) and (b)(9) (“separation pay plans,” including the exceptions under subparagraph (iii) and subparagraph
(v)(D)) and other applicable provisions of Treasury Regulation §§ 1.409A-1 through A-6). For purposes of Section 409A,
each of the payments that may be made under this Agreement shall be deemed to be a separate payment for purposes of Section 409A.
This Agreement shall be administered, interpreted and construed in a manner that does not result in the imposition of additional
taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate in good faith to make amendments
to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition of taxes, penalties or interest
under Section 409A. Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any such payments
or benefits except to the extent specifically permitted or required by Section 409A. Notwithstanding the foregoing, the Company
does not guarantee any particular tax effect, and Executive shall be solely responsible and liable for the satisfaction of all
taxes, penalties and interest that may be imposed on or for the account of Executive in connection with the Agreement (including
any taxes, penalties and interest under Section 409A), and neither the Company nor any of its affiliates shall have any obligation
to indemnify or otherwise hold Executive (or any beneficiary) harmless from any or all of such taxes, penalties or interest. With
respect to the time of payments of any amounts under the Agreement that are “deferred compensation” subject to Section
409A, references in the Agreement to “termination of employment” (and substantially similar phrases) shall mean “separation
from service” within the meaning of Section 409A. For the avoidance of doubt, it is intended that any expense reimbursement
made to Executive hereunder shall be exempt from Section 409A. Notwithstanding the foregoing, if any expense reimbursement made
hereunder shall be determined to be “deferred compensation” within the meaning of Section 409A, then (a) the amount
of the indemnification payment or expense reimbursement during one taxable year shall not affect the amount of the expense reimbursement
during any other taxable year, (b) the expense reimbursement shall be made on or before the last day of Executive’s taxable
year following the year in which the expense was incurred and (c) the right to expense reimbursement hereunder shall not be subject
to liquidation or exchange for another benefit.
(j) Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same instrument. The parties hereto agree to accept a signed facsimile copy or “PDF” of this Agreement
as a fully binding original.
(k) Headings.
The section and other headings contained in this Agreement are for the convenience of the parties only and are not intended to
be a part hereof or to affect the meaning or interpretation hereof.
(l) Condition
Precedent. The effectiveness of this Agreement is contingent on (i) the Company’s successful completion of a satisfactory
background investigation and reference check, as determined by the Company in its sole discretion and in accordance with the Company’s
applicable policy and applicable law, and (ii) Executive’s compliance with applicable Federal law and the Immigration Reform
and Control Act of 1986, and as a condition of employment, Executive must complete an Employment Verification Form 1-9 and present
proof of identity and employment eligibility to work in the United States to the Company within three days following the Commencement
Date.
-- Signature page follows --
IN
WITNESS WHEREOF, the Company has duly executed this Agreement by their authorized representatives, and Executive has hereunto
set Executive’s hand, in each case effective as of the Commencement Date.
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EOS ENERGY SOLUTIONS LLC
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By:
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/s/ Russell Stidolph
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Name:
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Russell Stidolph
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Title:
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Chairman
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EXECUTIVE
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/s Joseph Mastrangelo
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Joseph Mastrangelo
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[Signature Page to Mastrangelo Employment
Agreement]
Exhibit A
Annual Bonus Performance Targets
2020: Revenue of $7.0mm
2021: Revenue of $65.0mm
Exhibit 10.12
Employment
Agreement
This Employment Agreement (this “Agreement”)
is dated as of June 1, 2020 (the “Commencement Date”), and is made by and between Eos Energy Storage
LLC, a Delaware limited liability company (the “Company”), and Mack Treece (“Executive”).
W i t n e s s e t h:
WHEREAS, the Company and Executive are
currently parties to that certain Consulting Agreement, dated as of March 5, 2019 (the “Consulting Agreement”),
under which Executive provides services to the Company as its Chief Financial Officer on an at-will contractor basis;
WHEREAS, the Company and Executive desire
to terminate the Consulting Agreement and enter into this Agreement in lieu thereof; and
WHEREAS, the Company desires to employ
Executive to serve as the Chief Strategic Commercial Alliances and Integration Officer of the Company, and Executive desires to
be so employed, in each case, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the
foregoing premises and the mutual covenants and promises contained herein, and for other good and valuable consideration, the Company
and Executive hereby agree as follows:
1. Agreement to
Employ; No Conflicts
Upon the terms and
subject to the conditions of this Agreement, the Company hereby agrees to continue employing Executive, and Executive hereby accepts
such continued employment by the Company. Executive represents and warrants that (a) Executive is entering into this Agreement
voluntarily, and that Executive’s employment hereunder and compliance with the terms and conditions hereof will not conflict
with or result in the breach by Executive of any agreement to which Executive is a party or by which Executive may be bound; (b)
Executive has not violated, and in connection with Executive’s employment with the Company will not violate, any non-competition,
non-solicitation or other similar covenant or agreement by which Executive is or may be bound; and (c) in connection with
Executive’s employment by the Company, Executive will not use any confidential or proprietary information Executive may
have obtained in connection with Executive’s services to any prior employer.
2. Term; Position
and Responsibilities
(a) Term.
Unless Executive’s employment shall sooner terminate pursuant to Section 7, the Company
shall employ Executive for a term commencing on the Commencement Date and ending on the third anniversary thereof (the
“Initial Term”). Effective upon the expiration of the Initial Term and of each Additional Term (as
defined below), unless Executive’s employment shall sooner terminate pursuant to Section 7, Executive’s
employment hereunder shall be deemed to be automatically extended, upon the same terms and conditions, for an additional
period of one year (each, an “Additional Term”), in each such case, commencing upon the expiration
of the Initial Term or the then current Additional Term, as the case may be, unless, at least 60 days prior to the expiration
of the Initial Term or such Additional Term, as the case may be, either party hereto shall have notified the other party
thereto in writing that such extension shall not take effect. The period during which Executive is employed pursuant to this
Agreement shall be referred to as the “Employment Period”.
(b) Position and Responsibilities. During the Employment
Period, Executive shall serve as the Chief Strategic Commercial Alliances and Integration Officer of the Company, reporting to
the Chief Executive Officer of the Company (the “CEO”). Executive shall have such duties and responsibilities
as are customarily assigned to individuals serving in such position, and such other duties consistent with Executive’s position
as the CEO specifies from time to time. Executive shall devote all of Executive’s skill, knowledge and business time to
the conscientious performance of such duties and responsibilities, except for vacation time (as set forth in Section 6(b)), absence
for sickness or similar disability, and time spent performing services for any charitable, religious or community organizations,
so long as such services do not materially interfere with the performance of Executive’s duties hereunder.
3. Base Salary
From March 1, 2019 and prior to the signing
of this Agreement, Executive has been paid cash compensation as a consultant at a monthly rate of US $15,000.00 per month in accordance
with the Consulting Agreement. Upon the Commencement Date, the Company shall pay Executive a base salary at an annualized rate
of $325,000 per year. The amount of the Base Salary will be reviewed by the Company’s Board of Directors (the “Board”)
and CEO annually during the Employment Period, which may increase (but not decrease) Executive’s Base Salary in their sole
discretion at that time. The annual base salary payable to Executive under this Section 3 shall hereinafter be referred to as the
“Base Salary”.
4. Incentive Compensation
(a) Annual
Cash Bonus. Beginning in the calendar year in which the Company successfully closes new funding and for each full calendar
year of the Company that ends during the Employment Period thereafter, Executive shall have an annual cash bonus opportunity ranging
from 50% to 100% of Base Salary, as determined by the Board in its sole discretion (the “Annual Bonus”).
Any Annual Bonus that becomes payable pursuant to this Section 4(a) shall be paid to Executive within the calendar year following
the year to which such Annual Bonus relates and within 30 days of the Board’s approval of audited financial statements of
the Company for the calendar year to which such Annual Bonus relates; provided, that, except as expressly
provided herein, Executive is employed by the Company on the date such Annual Bonus is to be paid. Additionally, during the Employment
Period, the Board and the CEO may determine to grant Executive additional bonus opportunities in such amounts and subject to such
terms as the Board and the CEO shall determine in their sole discretion from time to time.
(b) Equity
Compensation.
(i) Initial Options. Within 30 days after the Commencement
Date, the Company will grant to Executive an option to purchase 1,000,000 Common Units (as defined in the Operating Agreement
(as defined below)) of the Company. Such option shall be issued in accordance with the Company’s 2012 Equity Incentive Plan,
as amended from time to time (the “Plan”) and the Company’s Sixth
Amended and Restated Limited Liability Company Agreement, dated as of April 20, 2018, as amended from time to time (the “Operating
Agreement”), and will be evidenced by, and subject to, an option agreement entered into by Executive and the Company.
Such option shall have an exercise price equal to $0.50 per Common Unit, will vest annually over three years beginning on the
first anniversary of the Commencement Date, and will fully vest in the event of the consummation of a Change in Control (as defined
in the Plan).
(ii) Closing of New Funding Options. Subject to Executive’s
continuous employment through the applicable grant date, within 30 days after the closing of new funding, the Company will grant
to Executive a one-time option to purchase an additional 1,000,000 Common Units of the Company. Such option shall be issued in
accordance with the Plan and the Operating Agreement, and will be evidenced by, and subject to, an option agreement entered into
by Executive and the Company. Such option shall have an exercise price equal to the then-current fair market value per Common
Unit on the grant date, will vest annually over three years beginning on the first anniversary of the grant date, and will fully
vest in the event of the consummation of a Change in Control.
5. Employee Benefits
During the Employment Period, Executive
(and, to the extent eligible, Executive’s dependents and beneficiaries) shall be entitled to participate in any defined contribution
plan, any insurance program and any medical and other health benefit plan, in each case, sponsored by the Company for its employees
on terms and conditions set forth in such programs and plans (as amended from time to time).
6. Expenses; Vacation;
(a) Business
Travel, Lodging, etc. The Company shall reimburse Executive for reasonable business, travel (business class airfare shall be
considered reasonable for any flight (inclusive of connecting flights) with a flight time longer than five hours), lodging, meal
and other reasonable expenses incurred by Executive in connection with Executive’s performance of services hereunder upon
submission of evidence, satisfactory to the Company, of the incurrence and purpose of each such expense, and otherwise in accordance
with the Company’s expense policy applicable to its employees as in effect from time to time.
(b) Vacation.
During the Employment Period, Executive shall be entitled to a minimum of four weeks of paid personal time off per calendar year,
which shall be taken by Executive in his reasonable discretion, subject to the reasonable business needs of the Company.
7. Termination of Employment
(a) Termination
Due to Death or Disability. During the Employment Period, Executive’s employment shall automatically terminate in
the event of Executive’s death, and may be terminated by the Company due to Executive’s Disability (as defined
below). For the purposes of this Agreement, “Disability” shall mean a physical or mental disability
that prevents, regardless of any reasonable accommodation, the performance by Executive of Executive’s duties under
this Agreement for a continuous period of 90 days or longer, or for 180 days or more in any
12-month period.
(b) Termination
by the Company. During the Employment Period, the Company may terminate Executive’s employment with the Company
with or without Cause. For purposes of this Agreement, “Cause” shall mean (a) any failure by
Executive to perform Executive’s material duties hereunder (other than any such breach or failure due to Executive’s
physical or mental illness) and the continuance of such failure for more than 30 days following Executive’s receipt of written
notice from the Company specifying such failure; (b) any failure by Executive to cooperate, if reasonably requested by
the Company, with any investigation or inquiry into Executive’s or the Company’s business practices, whether internal
or external, including, but not limited to, Executive’s refusal to be deposed or to provide testimony at any trial or inquiry;
(c) Executive engaging in fraud, willful misconduct, gross negligence or dishonesty that has caused or is reasonably expected
to result in material injury to the Company or any of its affiliates; (d) any breach by Executive of any fiduciary duty
owed to the Company or any of its affiliates or members; (e) Executive’s conviction of, or entering a plea of guilty
or nobo contendere to, a crime that constitutes a felony; or (f) any material breach by Executive of any of Executive’s
obligations hereunder or under any other written agreement or covenant with the Company or any of its affiliates, which, if curable,
continues for more than 30 consecutive days after the Company notifies Executive in writing of such breach. A termination for
Cause shall include a reasonable determination by the Company following the termination of the Employment Period that circumstances
existed during the Employment Period that would have justified a termination by the Company for Cause.
(c) Termination
by Executive. During the Employment Period, Executive may terminate Executive’s employment with the Company with or
without Good Reason. For purposes of this Agreement, “Good Reason” shall mean a termination by Executive
of Executive’s employment hereunder if (i) any of the following events occur without Executive’s consent, (ii)
within 30 days after Executive learns of the occurrence of such event, Executive notifies the Company in writing that such event
has occurred describing such event in reasonable detail and demanding cure, and (iii) such event is not cured within 30
days after Executive so notifies the Company: (a) a material diminution in Executive’s authority, duties or responsibilities
that Executive has on the date hereof, (b) a reduction in the rate of Base Salary, other than in connection with an across
the board reduction of the base salaries of senior executives of the Company generally, or (c) any material breach by the
Company of any of its material obligations hereunder.
(d) Notice
of Termination. Any termination of Executive’s employment by the Company pursuant to Section 7(a) (other than in the
event of Executive’s death) or Section 7(b) or by Executive pursuant to Section 7(c) shall be communicated by a written Notice
of Termination addressed to the other party to this Agreement. A “Notice of Termination” shall mean a
notice stating that Executive’s employment with the Company has been or will be terminated.
(e) Date of Termination.
As used in this Agreement, the term “Date of Termination” shall mean (i) if Executive’s
employment is terminated by Executive’s death, the date of Executive’s death; (ii) if Executive’s employment
is terminated by the Company pursuant to Section 7(a) due to Executive’s Disability, 30 days after the date on which the
Notice of Termination is given; provided, that, if Executive shall have returned to the performance of Executive’s
duties on a full-time basis during such 30-day period, such Notice of Termination shall be of no force or effect; (iii)
if Executive’s employment is terminated by the Company for Cause or by Executive for Good Reason, the date any applicable
cure period expires (and, if there is no applicable cure period, the date specified in the Notice of Termination); provided,
that if a party is entitled to cure the nature of such termination and so cures prior to the expiration of the applicable
cure period, the Notice of Termination provided to such curing party shall be of no force or effect; and (iv) if Executive’s
employment is terminated for any other reason, the date specified in the Notice of Termination (which shall be 60 days after the
date of such notice) and, if no such notice is given, 60 days after the date of termination of employment.
(f) Payments Upon
Certain Terminations.
(i) Termination Without
Cause or for Good Reason. If (A) the Company shall terminate Executive’s employment without Cause or (B)
Executive shall terminate Executive’s employment for Good Reason, in each case, during the Employment Period, the Company
shall pay to Executive:
(A) any
accrued and unpaid Base Salary and vacation earned through the Date of Termination, which shall be paid on the tenth day after
the Date of Termination (or, if such day is not a business day, the next business day after such day); plus
(B) as
liquidated damages in respect of claims based on provisions of this Agreement and provided that Executive executes and delivers
(and does not revoke) a general release of all claims in form and substance reasonably satisfactory to the Company within 60 days
following the Date of Termination:
(I) six
months’ Base Salary, which shall be paid in periodic installments on the Company’s regular payroll dates, beginning
with the next payroll date immediately following the expiration of the 60th day following the Date of Termination
(which first payment shall include any payments of Base Salary that should have been made during such 60-day period but for the
60-day release consideration period); plus
(II) a prorated Annual
Bonus for the year of termination in an amount equal to (x) the Annual Bonus, multiplied by (y) a fraction, the
numerator of which is the number of days Executive was employed by the Company during such calendar year and the denominator of
which is 365, payable in accordance with Section 4(a) above.
(ii) Termination for Any Other Reason. If Executive’s
employment is terminated for any reason other than those specified in Section 7(f)(i) during the Employment Period, the Company
shall pay Executive on the tenth day after the Date of Termination (or, if such day is not a business day, the next business day
after such day), any accrued and unpaid Base Salary and vacation earned through the Date of Termination.
(iii) Effect of Termination on
Other Plans and Programs. In the event that Executive’s employment with the Company is terminated for any reason,
Executive shall be entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan, policy,
program or practice of the Company in which Executive was a participant immediately prior to
the Date of Termination in accordance with the terms thereof; provided, that, if Executive’s
employment is terminated without Cause or for Good Reason, Executive shall not be entitled to receive any payments or
benefits under any such plan, policy, program or practice providing any severance or incentive compensation and the
provisions of this Section 7 shall supersede the provisions of any such plan, policy, program or practice.
(g) Resignation
Upon Termination. Effective as of the date of Executive’s termination of employment with the Company, Executive shall
resign, in writing, from all positions then held by Executive with the Company and its affiliates unless otherwise requested by
the Company and agreed to by Executive.
(h) Cessation
of Professional Activity. Upon delivery of a Notice of Termination by any party or a notice pursuant to Section 2(a), the Company
may relieve Executive of Executive’s responsibilities described in Section 2(b) and require Executive to immediately cease
all professional activity on behalf of the Company, in any such case, without such suspension or cessation constituting a termination
by the Company without Cause or providing Executive with grounds to terminate Executive’s employment for Good Reason.
8. Restrictive Covenants
(a) Unauthorized
Disclosure. During the Employment Period and following any termination thereof, without the prior written consent of a duly
authorized representative of the Company except to the extent required by an order of a court having competent jurisdiction or
under subpoena from an appropriate government agency, in which event, Executive shall use Executive’s best efforts to consult
with the Company prior to responding to any such order or subpoena, and except as authorized in performance of Executive’s
duties hereunder, Executive shall not use or disclose any confidential or proprietary trade secrets, customer lists, drawings,
designs, marketing plans, management organization information (including, but not limited to, data and other information relating
to the Company or any affiliate thereof (the “Company Group”), or to the members of the boards of directors
of the Company Group, or to the management of the Company Group), operating policies or manuals, business plans, financial records,
or other financial, commercial, business or technical information (i) relating to the Company Group or (ii) that
the Company Group may receive belonging to customers or others who do business with the Company Group (collectively, “Confidential
Information”) to any third Person (defined below) unless such Confidential Information has been previously disclosed
to the public generally or is in the public domain (in each case, other than by reason of Executive’s breach of this Section
8(a)).
(b) Non-Competition.
During the period beginning on the date hereof and ending twelve months after the termination of Executive’s employment
with the Company (the “Restriction Period”), Executive shall not, directly or indirectly, own any interest
in, operate, join, control or participate as a partner, shareholder, member, director, manager, officer, or agent of, enter into
the employment of, act as a consultant to, or perform any services for any entity that is in competition with the Business (as
defined below) of the Company Group in any jurisdiction in which the Company Group is engaged at the time of Executive’s
termination of employment. For purposes of this Agreement, “Business” means the development and manufacture
of energy storage products and solutions, including, without limitation, grid-scale energy storage, DC battery systems,
electric utilities, applications in commercial and industrial, micro grid, telecom, military, renewables, and residential markets,
and the provision of services related thereto.
(c) Non-Solicitation
of Employees. During the Restriction Period, Executive shall not, directly or indirectly, for Executive’s own account
or for the account of any other natural person, partnership, limited liability company, association, corporation, company, trust,
business trust, governmental authority or other entity (each, a “Person”) in any jurisdiction in which the
Company Group has commenced or has documented plans, as of the termination of Executive’s employment with the Company, to
commence operations during the Employment Period, (i) solicit for employment, employ or otherwise interfere with the relationship
of the Company Group with any natural person throughout the world who is or was employed by or otherwise engaged to perform services
for the Company Group at any time (a) during the Employment Period, in the case of such prohibited activity occurring during
such time, or (b) during the twelve month period preceding such prohibited activity, in the case of such prohibited activity
occurring during the Restriction Period but after the date of Executive’s termination of employment with the Company, in
each case, other than any such solicitation or employment on behalf of or at the request of the Company Group during the Employment
Period; or (ii) induce any employee of the Company Group to engage in any activity which Executive is prohibited from engaging
in under any of this Section 8 or to terminate such employee’s employment with the Company.
(d) Non-Solicitation
of Business Relationships. During the Restriction Period, Executive shall not, directly or indirectly, for Executive’s
own account or for the account of any other Person, in any jurisdiction in which the Company Group has commenced or has made plans
to commence operations, solicit, interfere with, or otherwise attempt to establish any business relationship of a nature that
is competitive with the Business or relationship of the Company Group with any Person throughout the world which is or was a customer,
client, distributor, supplier or vendor of the Business of the Company Group (x) at any time during the Employment Period
(in the case of such prohibited activity occurring during such time) or (y) during the twelve month period preceding such
prohibited activity (in the case of such prohibited activity occurring during the Restriction Period but after the date of Executive’s
termination of employment with the Company), other than any such activity on behalf of or at the request of the Company Group
during the Employment Period.
(e) Works
for Hire.
(i) Generally.
Executive agrees that the Company shall own all right, title and interest (including, but not limited to, patent rights, copyrights,
trade secret rights and other rights throughout the world) in any inventions, works of authorship, ideas or information made or
conceived or reduced to practice, in whole or in part, by Executive (either alone or with others) during the Employment Period
(collectively “Developments”); provided, however, that the Company shall not own
Developments for which no equipment, supplies, facility, trade secret information or Confidential Information of the Company was
used and which were developed entirely on Executive’s time, and (A) which do not relate (I) to the business
of the Company Group or (II) to the actual or demonstrably anticipated research or development of the Company Group, and
(B) which do not result from any work performed by Executive for the Company.
(ii) Disclosure;
Assignment. Subject to Section 8(e)(i), Executive will promptly and fully disclose to the Company, or any persons
designated by it, any and all Developments made or conceived or reduced to practice or learned by Executive, either alone or
jointly with others during the Employment Period. Executive hereby assigns all right, title and interest in and to any and
all of these Developments to the Company. Executive shall further assist the Company, at the Company’s expense, to
further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights
specified to be so owned or assigned. Executive hereby irrevocably designates and appoints the Company and its agents as
attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to do all other lawfully
permitted acts to further the purposes of the foregoing with the same legal force and effect as if executed by
Executive.
(iii) Copyright
Act; Moral Rights. In addition, and not in contravention of Section 8(e)(i) or Section 8(e)(ii), Executive acknowledges that
all original works of authorship which are made by Executive (solely or jointly with others) within the scope of employment and
which are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright
Act (17 USC §101). To the extent allowed by law, this Section 8(e) includes all rights of paternity, integrity, disclosure
and withdrawal and any other rights that may be known as or referred to as “moral rights” (collectively, “Moral
Rights”). To the extent Executive retains any such Moral Rights under applicable law, Executive hereby waives such
Moral Rights and consents to any action consistent with the terms of this Agreement with respect to such Moral Rights, in each
case, to the full extent of such applicable law. Executive will confirm any such waivers and consents from time to time as requested
by the Company.
(iv) Authorized Disclosure.
Section 1833(b) of Title 18 of the United States Code states “An individual shall not be held criminally or civilly liable
under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made (a) in confidence
to a Federal, State, or local government official, either directly or indirectly, or to an attorney and (b) solely for
the purposes of reporting or investigating a suspended violation of law or (ii) is made in a complaint or other document
filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, the Company and Executive have
the right to disclose in confidence trade secrets to Federal, State, and local government officials, or to an attorney, for the
sole purpose of reporting or investigating a suspected violation of law. The Company and Executive also have the right to disclose
trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from
public disclosure. Nothing in this Agreement is intended to conflict with Section 1833(b) of Title 18 of the United States Code
or create liability for disclosures of trade secrets that are expressly allowed by Section 1833(b) of Title 18 of the United States
Code.
(f) Mutual Nondisparagement.
Executive agrees that Executive shall neither, directly or indirectly, engage in any conduct or make any statement (including
through social media) disparaging or criticizing in any way the Company Group, or any of their personnel, nor engage in any other
conduct or make any other statement that could be reasonably expected to impair the goodwill of the Company Group, the reputation
of the Company Group, in each case, except to the extent required by law, and then only after consultation with the Company to
the extent possible, or to enforce the terms of this Agreement. The Company agrees that it shall not, and the Company
agrees that is shall instruct its senior executives and officers to not, directly or indirectly, engage in any conduct or make
any statement (including through social media) disparaging or criticizing in any way Executive, nor engage in any other conduct
or make any other statement that could be reasonably expected to impair the goodwill of Executive, the reputation of Executive,
in each case, (i) except to the extent required by law, and then only after consultation with Executive to the extent possible,
(ii) to enforce the terms of this Agreement, or (iii) from discussing Executive in connection with normal performance
evaluations.
(g) Return of Documents.
In the event of the termination of Executive’s employment, Executive shall promptly deliver to the Company (i) all
property of the Company Group then in Executive’s possession; and (ii) all documents and data of any nature and in
whatever medium of the Company Group, and Executive shall not take with Executive any such property, documents or data or any
reproduction thereof, or any documents containing or pertaining to any Confidential Information.
(h) Confidentiality
of Agreement; Governmental Agency Exception. The parties to this Agreement agree not to disclose its terms to any Person, other
than their attorneys, accountants, financial advisors or, in Executive’s case, members of Executive’s immediate family
or, in the Company’s case, for any reasonable purpose that is reasonably related to its business operations; provided,
that this Section 8(h) shall not be construed to prohibit any disclosure required by law or in any proceeding to enforce the terms
and conditions of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, this Agreement does not
limit Executive’s ability to communicate with any government agency or otherwise participate in any investigation or proceeding
that may be conducted by any government agency, including providing documents or other information, without notice to the Company
or its affiliates. This Agreement does not limit Executive’s right to receive an award for information provided to any government
agencies.
9. Certain Acknowledgments;
Injunctive Relief with Respect to Covenants
(a) Executive acknowledges
and agrees that Executive will have a prominent role in the development of the goodwill of the Company Group, and has and will
establish and develop relations and contacts with the principal business relationships of the Company Group in the United States
of America and the rest of the world, all of which constitute valuable goodwill of, and could be used by Executive to compete
unfairly with, the Company Group and that (i) in the course of Executive’s employment with the Company, Executive
will obtain confidential and proprietary information and trade secrets concerning the business and operations of the Company Group
in the United States of America and the rest of the world that could be used to compete unfairly with the Company Group; (ii)
the covenants and restrictions contained in Section 8 are intended to protect the legitimate interests of the Company Group
in their respective goodwill, trade secrets and other confidential and proprietary information; and (iii) Executive desires
to be bound by such covenants and restrictions.
(b) Injunctive
Relief. Executive acknowledges and agrees that the covenants, obligations and agreements of Executive contained in Section
8 relate to special, unique and extraordinary matters and that a violation of any of the terms of such covenants, obligations
or agreements will cause the Company Group irreparable injury for which adequate remedies are not available at law. Therefore,
Executive agrees that the Company shall be entitled to an injunction, restraining order or such
other equitable relief (without the requirement to post bond) as a court of competent jurisdiction may deem necessary or appropriate
to restrain Executive from committing any violation of such covenants, obligations or agreements. These injunctive remedies are
cumulative and in addition to any other rights and remedies the Company Group may have.
10. Entire Agreement
This Agreement constitutes the entire agreement
between the Company and Executive with respect to the subject matter hereof, and supersedes all undertakings and agreements, whether
oral or in writing, previously entered into by the Company and Executive with respect thereto, including, without limitation, the
Consulting Agreement. All prior correspondence and proposals (including, but not limited to, summaries of proposed terms and the
Consulting Agreement) and all prior offer letters, promises, representations, understandings, arrangements and agreements relating
to such subject matter (including, but not limited to, those made to or with Executive by any other person) are merged herein and
superseded hereby.
11. General Provisions
(a) Binding
Effect; Assignment. This Agreement shall be binding on and inure to the benefit of the Company and its respective successors
and permitted assigns. This Agreement shall also be binding on and inure to the benefit of Executive and Executive’s heirs,
executors, administrators and legal representatives. This Agreement shall not be assignable by any party hereto without the prior
written consent of the other parties hereto, except as provided pursuant to this Section 11(a). The Company may affect such an
assignment without prior written approval of Executive upon the transfer of all or substantially all of its business and/or assets
(by whatever means).
(b) Governing
Law; Waiver of Jury Trial.
(i) Governing Law; Consent to Jurisdiction. This
Agreement shall be governed in all respects, including as to interpretation, substantive effect and enforceability, by the
internal laws of the State of New Jersey, without regard to conflicts of laws provisions thereof that would require
application to the laws of another jurisdiction other than those that mandatorily apply. Each party hereby irrevocably
submits to the jurisdiction of the courts of the State of New Jersey and the federal courts of the United States of America
located in the District of New Jersey solely in respect of the interpretation and enforcement of the provisions of this
Agreement and in respect of the transactions contemplated hereby. Each party hereby waives and agrees not to assert, as a
defense in any action, suit or proceeding for the interpretation and enforcement hereof, or in respect of any such
transaction, that such action, suit or proceeding may not be brought or is not maintainable in such courts or that the venue
thereof may not be appropriate or that this Agreement may not be enforced in or by such courts. Each party hereby consents to
and grants any such court jurisdiction over the person of such parties and over the subject matter of any such dispute and
agree that the mailing of process or other papers in connection with any such action or proceeding in the manner provided in
Section 11(f) or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
(ii) Waiver
of Jury Trial. Each party acknowledges and agrees that any controversy which may arise under this Agreement is likely
to involve complicated and difficult issues, and therefore each party hereby irrevocably and unconditionally waives any right
such party may have to a trial by jury in respect of any litigation directly or indirectly arising out of or relating to this
Agreement, or the breach, termination or validity of this Agreement, or the transactions contemplated by this Agreement. Each
party certifies and acknowledges that (A) no representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver; (B) each
such party understands and has considered the implications of this waiver; and (C) each such party makes this waiver voluntarily.
(c) Taxes.
All amounts payable and benefits provided hereunder shall be subject to any and all applicable taxes, as required by applicable
Federal, state, local and foreign laws and regulations.
(d) Amendments;
Waiver. No provision of this Agreement may be modified, waived or discharged unless such modification, waiver or discharge
is approved by a Person authorized by the Company and is agreed to in writing by Executive and, in the case of any such modification,
waiver or discharge affecting the rights or obligations of the Company, is approved by a Person authorized thereby. No waiver by
any party hereto at any time of any breach by any other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No waiver of any provision of this Agreement shall be implied from any course of dealing
between or among the parties hereto or from any failure by any party hereto to assert its rights hereunder on any occasion or series
of occasions.
(e) Legal
Advice; Severability; Blue Pencil. Executive acknowledges that Executive has been advised to seek independent legal counsel
for advice regarding the effect of the provisions of this Agreement, and has either obtained such advice of independent legal counsel,
or has voluntarily and without compulsion elected to enter into and be bound by the terms of this Agreement without such advice
of independent legal counsel. In the event that any one or more of the provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein
shall not be affected thereby. Executive and the Company agree that the covenants contained in Section 8 are reasonable covenants
under the circumstances, and further agree that if, in the opinion of any court of competent jurisdiction such covenants are not
reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions
of these covenants as to the court shall appear not reasonable and to enforce the remainder of these covenants as so amended.
(f) Notices.
Any notice or other communication required or permitted to be delivered under this Agreement shall be (A) in writing; (B)
delivered personally, by facsimile, by courier service or by certified or registered mail, first class postage prepaid and
return receipt requested; (C) deemed to have been received on the date of delivery or, if so mailed, on the third business
day after the mailing thereof; and (D) if so mailed or delivered by courier service, addressed as follows (or to such other
address as the party entitled to notice shall hereafter designate in accordance with the terms hereof):
(I) If to the
Company:
Eos Energy Solutions LLC
3920 Park Avenue
Edison, NJ 08820
Attn: Russell Stidolph, Chairman
Email: rstidolph@altenergyllc.com
With a copy (which shall not constitute notice) to:
Morrison Cohen LLP
909 Third Avenue
New York, NY 10022
Attn:
David P. LaGalia, Esq.
Anthony Saur, Esq.
Fax: (212) 735-8708
(II) If
to Executive, at Executive’s residential address as currently on file with the Company.
(g) Survival.
The Company and Executive hereby agree that certain provisions of this Agreement, including, but not limited to, Sections 8, 9,
10 and 11, shall survive the expiration of the Employment Period in accordance with their terms.
(h) Further
Assurances. Each party hereto agrees with the other party hereto that it will cooperate with such other party and will execute
and deliver, or cause to be executed and delivered, all such other instruments and documents, and will take such other actions,
as such other party may reasonably requests from time to time, to effectuate the provisions and purpose of this Agreement.
(i) Section 409A.
The parties intend that any amounts payable hereunder comply with or are exempt from Section 409A of the Internal Revenue
Code of 1986, as amended (“Section 409A”) (including under Treasury Regulation §§ 1.409A-1(b)(4)
(“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exceptions under subparagraph
(iii) and subparagraph (v)(D)) and other applicable provisions of Treasury Regulation §§ 1.409A-1 through A-6). For
purposes of Section 409A, each of the payments that may be made under this Agreement shall be deemed to be a separate payment
for purposes of Section 409A. This Agreement shall be administered, interpreted and construed in a manner that does not result
in the imposition of additional taxes, penalties or interest under Section 409A. The Company and Executive agree to negotiate
in good faith to make amendments to the Agreement, as the parties mutually agree are necessary or desirable to avoid the imposition
of taxes, penalties or interest under Section 409A. Neither the Company nor Executive shall have the right to accelerate or defer
the delivery of any such payments or benefits except to the extent specifically permitted or required by Section 409A. Notwithstanding
the foregoing, the Company does not guarantee any particular tax effect, and Executive shall be solely responsible and liable
for the satisfaction of all taxes, penalties and interest that may be imposed on or for the account of Executive in connection
with the Agreement (including any taxes, penalties and interest under Section 409A), and neither the Company nor any of its affiliates
shall have any obligation to indemnify or otherwise hold Executive (or any beneficiary) harmless from any or all of such taxes,
penalties or interest. With respect to the time of payments of any amounts under the Agreement that are “deferred compensation”
subject to Section 409A, references in the Agreement to “termination of employment” (and substantially similar phrases)
shall mean “separation from service” within the meaning of Section 409A. For the avoidance of doubt, it is intended
that any expense reimbursement made to Executive hereunder shall be exempt from Section 409A. Notwithstanding the foregoing, if
any expense reimbursement made hereunder shall be determined to be “deferred compensation” within the meaning of Section
409A, then (a) the amount of the indemnification payment or expense reimbursement during one taxable year shall not affect
the amount of the expense reimbursement during any other taxable year, (b) the expense reimbursement shall be made on or
before the last day of Executive’s taxable year following the year in which the expense was incurred and (c) the
right to expense reimbursement hereunder shall not be subject to liquidation or exchange for another benefit.
(j) Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same instrument. The parties hereto agree to accept a signed facsimile copy or “PDF” of this Agreement
as a fully binding original.
(k) Headings.
The section and other headings contained in this Agreement are for the convenience of the parties only and are not intended to
be a part hereof or to affect the meaning or interpretation hereof.
(l) Condition
Precedent. The effectiveness of this Agreement is contingent on (i) the Company’s successful completion of a satisfactory
background investigation and reference check, as determined by the Company in its sole discretion and in accordance with the Company’s
applicable policy and applicable law, and (ii) Executive’s compliance with applicable Federal law and the Immigration Reform
and Control Act of 1986, and as a condition of employment, Executive must complete an Employment Verification Form I-9 and present
proof of identity and employment eligibility to work in the United States to the Company within three days following the Commencement
Date.
-- Signature
page follows --
IN WITNESS WHEREOF, the Company has duly executed this Agreement
by their authorized representatives, and Executive has hereunto set Executive’s hand, in each case effective as of the Commencement
Date.
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EOS ENERGY SOLUTIONS LLC
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By:
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/s/ Russell Stidolph
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Name:
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Russell Stidolph
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Title:
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Chairman
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EXECUTIVE
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/s/ Mack Treece
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Mack Treece
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[Signature
Page to Treece Employment Agreement]
Exhibit 10.13
INDEMNITY
AGREEMENT
THIS
INDEMNITY AGREEMENT (this “Agreement”) is made as of [●] , 2020, by and between Eos Energy Enterprises,
Inc., a Delaware corporation (the “Company”), and [●] (“Indemnitee”).
RECITALS
The
Company believes that, in order to attract and retain highly qualified persons to serve as directors or in other capacities, including
as officers, it must provide those persons with adequate protection through indemnification against the risk of claims and actions
against them arising out of their services to and activities on behalf of the Company. The Third Amended and Restated Certificate
of Incorporation (the “Charter”) and the Amended and Restated Bylaws (the “Bylaws”) of the
Company require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification
pursuant to applicable provisions of the Delaware General Corporation Law (“DGCL”). The Charter, Bylaws and
the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that
contracts may be entered into between the Company and members of the Board of Directors of the Company (the “Board”),
officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
The
Company desires and has requested Indemnitee to serve as a [director] [officer] of the Company and, in order to induce the Indemnitee
to serve as a [director] [officer] of the Company, the Company is willing to grant the Indemnitee the indemnification provided
for herein. Indemnitee is willing to so serve on the basis that such indemnification be provided.
The
parties by this Agreement desire to set forth their agreement regarding indemnification and the advancement of expenses. In consideration
of the mutual covenants and agreements set forth below, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
TERMS
AND CONDITIONS
1. SERVICES
TO THE COMPANY. In consideration of the Company’s covenants and obligations hereunder, Indemnitee will serve or continue
to serve as an officer, director, advisor, key employee or in any other capacity of the Company, as applicable, for so long as
Indemnitee is duly elected or appointed or retained or until Indemnitee tenders Indemnitee’s resignation or until Indemnitee
is removed. The foregoing notwithstanding, this Agreement shall continue in full force and effect after Indemnitee has ceased
to serve as a director, officer, advisor, key employee or in any other capacity of the Company, as provided in Section 14.
This Agreement, however, shall not impose any obligation on Indemnitee or the Company to continue Indemnitee’s service to
the Company beyond any period otherwise required by law or by other agreements or commitments of the parties, if any.
2. DEFINITIONS.
As used in this Agreement:
(a) References
to “agent” shall mean any person who is or was a director, officer or employee of the Company or a Subsidiary
of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity
as a director, officer, employee, fiduciary or other official of another corporation, partnership, limited liability company,
joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company
or a Subsidiary of the Company.
(b) (i)
A “change in control” shall be deemed to occur upon the earliest to occur after the date of this Agreement
of any of the following: (A) any person (as defined below) is or becomes the beneficial owner (as defined below), directly or
indirectly, of securities of the Company representing 15% or more of the combined voting power of the Company’s then outstanding
securities, (B) during any period of two consecutive years (not including any period prior to the execution of this Agreement),
individuals who at the beginning of that period constitute the Board of Directors of the Company, and any new director (other
than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in
clause (A), clause (C) or clause (D) of this Section 2(b)(i) or a director whose initial nomination for, or assumption of office
as, a member of the Board occurs as a result of an actual or threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by
or on behalf of the Board) whose election by the Board or nomination for election by the Company’s stockholders was approved
by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period
or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority
of the members of the Board, (C) the effective date of a merger or consolidation of the Company with any other entity, other than
a merger or consolidation that would result in the voting securities of the Company outstanding immediately prior to the merger
or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the
surviving entity) at least 50% of the combined voting power of the voting securities of the surviving entity outstanding immediately
after the merger or consolidation and with the power to elect at least a majority of the board of directors or other governing
body of the surviving entity, and (D) the approval by the stockholders of the Company of a complete liquidation of the Company
or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets, and (E)
there occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below),
whether or not the Company is then subject to those reporting requirement.
(ii) For
purposes of Section 2(b)(i), the following terms have the following meanings:
(I) “person”
has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that “person” shall
exclude (a) the Company, (b) any trustee or other fiduciary holding securities under an employee benefit plan of the Company,
and (c) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company.
(II) “beneficial
owner” has the meaning given to that term in Rule 13d-3 under the Exchange Act.
(c) “Corporate
Status” describes the status of a person who is or was a director, officer, trustee, general partner, manager, managing
member, fiduciary, employee or agent of the Company or of any other Enterprise (as defined below) which that person is or was
serving at the request of the Company.
(d) “Delaware
Court” means the Court of Chancery of the State of Delaware.
(e)
“Enterprise” means the Company and any other corporation, constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party,
limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is
or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee
or agent.
(f) “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
(g) “Expenses”
shall be broadly construed and shall include, without limitation, all direct and indirect costs, fees and expenses of any type
or nature whatsoever, including, without limitation, all reasonable attorneys’ fees and costs, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, fees of private investigators and professional advisors, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees, fax transmission charges, secretarial services
and all other disbursements, obligations or expenses in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating in, a Proceeding (as
defined below), including reasonable compensation for time spent by Indemnitee for which he or she is not otherwise compensated
by the Company or any third party. Expenses also shall include Expenses incurred in connection with any appeal resulting from
any Proceeding (as defined below), including without limitation the principal, premium, security for, and other costs relating
to any cost bond, supersedeas bond, or other appeal bond or its equivalent. “Expenses,” however, shall not include
amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(h) References
to “fines” includes any excise tax assessed on Indemnitee with respect to any employee benefit plan; references
to “serving at the request of the Company” includes any service as a director, officer, employee, agent or fiduciary
of the Company which imposes duties on, or involves services by, the director, officer, employee, agent or fiduciary with respect
to an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan, Indemnitee
shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this
Agreement.
(i) “Independent
Counsel” means a law firm or a member of a law firm with significant experience in matters of corporation law and that
neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter
material to either party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees
under similar indemnification agreements); or (ii) any other party to the Proceeding (as defined below) giving rise to a claim
for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any
person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing
either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(j) The
term “Person” has the meaning set forth in Sections 13(d) and 14(d) of the Exchange Act as in effect on the
date hereof; provided, however, that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries (as defined below)
of the Company; (iii) any employment benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of any
corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership
of stock of the Company; and (iv) any trustee or other fiduciary holding securities under an employee benefit plan of the Company
or of a Subsidiary (as defined below) of the Company or of a corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company.
(k) The
term “Proceeding” includes any threatened, pending or completed action, suit, arbitration, mediation, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding,
whether brought in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims),
criminal, administrative or investigative or related nature, in which Indemnitee was, is, will or might be involved as a party
or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action (or
failure to act) taken by Indemnitee or of any action (or failure to act) on Indemnitee’s part while acting as a director
or officer of the Company, or by reason of the fact that Indemnitee is or was serving at the request of the Company as a director,
officer, trustee, general partner, managing member, fiduciary, employee or agent of any other Enterprise, in each case whether
or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or
advancement of expenses can be provided under this Agreement.
(l) The
term “Subsidiary,” with respect to any Person, means any corporation, limited liability company, partnership,
joint venture, trust or other entity of which a majority of the voting power of the voting equity securities or equity interest
is owned, directly or indirectly, by that Person.
3. INDEMNITY
IN THIRD-PARTY PROCEEDINGS. To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless
and exonerate Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to
be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding, other than a Proceeding by or in
the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this
Section 3, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, fines,
penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection
with or in respect of those Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) actually, and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in connection with the Proceeding or any claim, issue or matter therein,
if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that Indemnitee’s conduct was
unlawful.
4. INDEMNITY
IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the fullest extent permitted by applicable law, the Company shall indemnify,
hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or is
threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding by or in the right
of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 4,
Indemnitee shall be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection with the Proceeding or any claim, issue or matter therein, if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. No indemnification,
hold harmless or exoneration for Expenses shall be made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee has been finally adjudged by a court to be liable to the Company; provided, however, that the Company
shall indemnify, hold harmless and indemnify Indemnitee if the court in which the Proceeding was brought or the Delaware Court
determines that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly
and reasonably entitled to indemnification, to be held harmless or to exoneration.
5. INDEMNIFICATION
FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL. Notwithstanding any other provisions of this Agreement, to the
extent that Indemnitee was or is, by reason of Indemnitee’s Corporate Status, a party to (or a participant in) and is successful,
on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company
shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses
actually and reasonably incurred by Indemnitee in connection therewith. If Indemnitee is not wholly successful in the Proceeding
but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in the Proceeding,
the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against
all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with each successfully
resolved claim, issue or matter. If Indemnitee is not wholly successful in the Proceeding, the Company also shall, to the fullest
extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses reasonably incurred
in connection with a claim, issue or matter related to any claim, issue, or matter on which Indemnitee was successful. For purposes
of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as to the claim, issue or matter.
6. INDEMNIFICATION
FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason
of Indemnitee’s Corporate Status, a witness or deponent in any Proceeding (including, without limitation, any Proceeding
to which Indemnitee was or is not a party or threatened to be made a party), Indemnitee shall, to the fullest extent permitted
by applicable law, be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee
or on Indemnitee’s behalf in connection therewith.
7. ADDITIONAL
INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS. Notwithstanding any limitation in Section 3, Section 4
or Section 5, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate
Indemnitee if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the
right of the Company to procure a judgment in its favor) against all Expenses, judgments, liabilities, fines, penalties and amounts
paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of
those Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee
in connection with the Proceeding. No indemnification, hold harmless or exoneration rights shall be available under this Section
7 on account of Indemnitee’s conduct that constitutes a breach of Indemnitee’s duty of loyalty to the Company or its
stockholders or is an act or omission not in good faith or that involves intentional misconduct or a knowing violation of the
law.
8. CONTRIBUTION
IN THE EVENT OF JOINT LIABILITY.
(a) To
the fullest extent permissible under applicable law, if the indemnification, hold harmless and/or exoneration rights provided
for in this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying,
holding harmless or exonerating Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether
for judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with
any Proceeding without requiring Indemnitee to contribute to the payment, and the Company hereby waives and relinquishes any right
of contribution it may have at any time against Indemnitee.
(b) The
Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would
be if joined in the Proceeding) unless the settlement provides for a full and final release of all claims asserted against Indemnitee.
(c)
The Company shall fully indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought
by officers, directors or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee.
9. EXCLUSIONS.
Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification,
advance expenses, hold harmless or exoneration payment in connection with any claim made against Indemnitee:
(a) for
which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity or advancement
provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement,
other indemnity or advancement provision or otherwise;
(b) for
an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within
the meaning of Section 16(b) of the Exchange Act (or any successor rule) or similar provisions of state statutory law or common
law; or
(c) in
connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part
of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless,
as provided pursuant to Section 8.1 of the Bylaws (or that provision as revised, amended or re-numbered), (i) the proceeding was
authorized by the Board of Directors, or (ii) the indemnification is required to be made under Section 8.3 of the Bylaws, or any
such provision as revised, amended or re-numbered, addressing the enforcement of an Indemnitee’s indemnification rights.
Indemnitee shall seek payments or advances from the Company only to the extent that the payments or advances are unavailable from
any insurance policy of the Company covering Indemnitee.
10. ADVANCES
OF EXPENSES; DEFENSE OF CLAIM.
(a) To
the fullest extent permitted by the DGCL, the Company shall pay the Expenses incurred by Indemnitee (or reasonably expected by
Indemnitee to be incurred by Indemnitee within three months) in connection with any Proceeding within 30 days after the receipt
by the Company of a statement or statements requesting advances from time to time, prior to the final disposition of any Proceeding.
Advances shall, to the fullest extent permitted by law, be unsecured and interest free. Advances shall, to the fullest extent
permitted by law, be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s
ultimate entitlement to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances shall
include any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right of advancement, including Expenses
incurred preparing and forwarding statements to the Company to support the advances claimed. To the fullest extent required by
applicable law, payments of Expenses in advance of the final disposition of the Proceeding shall be made only upon the Company’s
receipt of an undertaking, by or on behalf of Indemnitee, to repay the advanced amounts to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified, held harmless or exonerated by the Company under the provisions of this Agreement,
the Charter, the Bylaws, applicable law or otherwise. This Section 10(a) shall not apply to any claim made by Indemnitee
for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9.
(b) The
Company will be entitled to participate in the Proceeding at its own expense.
(c) The
Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, liability,
fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent.
11. PROCEDURE
FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(a) Promptly
after receipt by Indemnitee of notice of the commencement of any action, suit or proceeding, Indemnitee shall, if a claim in respect
thereof is to be made against the Company hereunder, notify the Company in writing of the commencement thereof. The failure to
promptly notify the Company of the commencement of the action, suit or proceeding, or of Indemnitee’s request for indemnification,
will not relieve the Company from any liability that it may have to Indemnitee hereunder, except to the extent the Company is
actually and materially prejudiced in its defense of the action, suit or proceeding as a result of the failure. To obtain indemnification
under this Agreement, Indemnitee shall submit to the Company a written request therefor including any documentation and information
reasonably available to Indemnitee and reasonably necessary to enable the Company to determine whether and to what extent Indemnitee
is entitled to indemnification.
(b) With
respect to any action, suit or proceeding of which the Company is notified as provided in this Agreement, the Company shall, subject
to the last two sentences of this paragraph, be entitled to assume the defense of the action, suit or proceeding, with counsel
reasonably acceptable to Indemnitee, upon the delivery to Indemnitee of written notice of its election to do so. After delivery
of the notice, approval of that counsel by Indemnitee and the retention of that counsel by the Company, the Company will not be
liable to Indemnitee under this Agreement for any subsequently-incurred fees of separate counsel engaged by Indemnitee with respect
to the same action, suit or proceeding unless the employment of separate counsel by Indemnitee has been previously authorized
in writing by the Company. Notwithstanding the foregoing, if Indemnitee, based on the advice of his or her counsel, reasonably
concludes (with written notice being given to the Company setting forth the basis for the conclusion) that, in the conduct of
the defense, there is or is reasonably likely to be a conflict of interest or position between the Company and Indemnitee with
respect to a significant issue, then the Company will not be entitled, without the written consent of Indemnitee, to assume the
defense. In addition, the Company will not be entitled, without the written consent of Indemnitee, to assume the defense of any
claim brought by or in the right of the Company.
(c) To
the fullest extent permitted by the DGCL, the Company’s assumption of the defense of an action, suit or proceeding in accordance
with Section 11(b) will constitute an irrevocable acknowledgement by the Company that any loss and liability suffered by
Indemnitee and expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement by or for the account
of Indemnitee incurred in connection therewith are indemnifiable by the Company under this Agreement.
(d) The
determination whether to grant Indemnitee’s indemnification request shall be made promptly and in any event within 30 days
following the Company’s receipt of a request for indemnification in accordance with Section 11(a). If the Company
determines that Indemnitee is entitled to indemnification or, as contemplated by Section 11(c), the Company has acknowledged
the entitlement, the Company will make payment to Indemnitee of the indemnifiable amount within the 30 day period. If the Company
is not deemed to have acknowledged the entitlement or the Company’s determination of whether to grant Indemnitee’s
indemnification request has not been made within the 30 day period, the requisite determination of entitlement to indemnification
shall, subject to Section 9, nonetheless be deemed to have been made and Indemnitee shall be entitled to indemnification,
absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s
statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of indemnification
under the DGCL.
(e) If
(i) the Company determines that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company denies a
request for indemnification, in whole or in part, or fails to respond or make a determination of entitlement to indemnification
within 30 days following receipt of a request for indemnification as described above, (iii) payment of indemnification is not
made within the 30 day period, (iv) advancement of Expenses is not timely made in accordance with Section 10, or (v) the
Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes
any litigation or other action or proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended
to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication in any court of competent jurisdiction
of his or her entitlement to indemnification or advancement of Expenses. Indemnitee’s Expenses incurred in connection with
successfully establishing Indemnitee’s right to indemnification or advancement of Expenses, in whole or in part, in any
such proceeding or otherwise shall also be indemnified by the Company to the fullest extent permitted by the DGCL.
(f) Indemnitee
shall be presumed to be entitled to indemnification and advancement of Expenses under this Agreement upon submission of a request
therefor in accordance with Section 10 or Section 11, as the case may be. The Company shall have the burden of proof
in overcoming the presumption, and the presumption shall be used as a basis for a determination of entitlement to indemnification
and advancement of Expenses unless the Company overcomes the presumption by clear and convincing evidence.
(g) If
there is a change in control of the Company, then with respect to all matters thereafter arising concerning the rights of Indemnitee
to indemnification and advancement of expenses under this Agreement, any other agreement or the Company’s Charter or Bylaws
now or hereafter in effect, the Company shall seek legal advice only from independent counsel selected by Indemnitee and approved
by the Company (which approval shall not be unreasonably withheld). In addition, upon written request by Indemnitee for indemnification
pursuant to Section 11(a), a determination, if required by the DGCL, with respect to Indemnitee’s entitlement thereto
shall be made by the independent counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to
Indemnitee. The Company shall pay the reasonable fees of the independent counsel referred to above.
12. SECURITY.
Notwithstanding anything herein to the contrary, to the extent requested by Indemnitee and approved by the Board, the Company
may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an
irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be
revoked or released without the prior written consent of Indemnitee.
13. NON-EXCLUSIVITY;
SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The
rights of Indemnitee as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at
any time be entitled under applicable law, the Charter, the Bylaws, any agreement, a vote of stockholders or a resolution of directors,
or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right
of Indemnitee under this Agreement in respect of any Proceeding (regardless of when the Proceeding is first threatened, commenced
or completed) or claim, issue or matter therein arising out of, or related to, any action taken or omitted by Indemnitee in Indemnitee’s
Corporate Status prior to the amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute
or judicial decision, permits greater indemnification, hold harmless or exoneration rights or advancement of Expenses than would
be afforded currently under the Charter, the Bylaws or this Agreement, it is the intent of the parties that Indemnitee shall enjoy
by this Agreement the greater benefits so afforded by the change. No right or remedy herein conferred is intended to be exclusive
of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
(b) The
DGCL, the Charter and the Bylaws permit the Company to purchase and maintain insurance or furnish similar protection or make other
arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond (“Indemnification
Arrangements”) on behalf of Indemnitee against any liability asserted against Indemnitee or incurred by or on behalf
of Indemnitee or in the capacity as a director, officer, employee or agent of the Company, or arising out of Indemnitee’s
status as such, whether or not the Company would have the power to indemnify Indemnitee against that liability under the provisions
of this Agreement or under the DGCL, as it may then be in effect. The purchase, establishment, and maintenance of any Indemnification
Arrangement shall not in any way limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement
except as expressly provided herein, and the execution and delivery of this Agreement by the Company and Indemnitee shall not
in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any Indemnification
Arrangement.
(c) To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, trustees,
partners, managers, managing members, fiduciaries, employees, or agents of the Company or of any other Enterprise which the person
serves at the request of the Company, Indemnitee shall be covered by the policy or policies in accordance with its or their terms
to the maximum extent of the coverage available for any director, officer, trustee, partner, managers, managing member, fiduciary,
employee or agent under the policy or policies. If, at the time the Company receives notice from any source of a Proceeding as
to which Indemnitee is a party or a participant (as a witness, deponent or otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the Proceeding to the insurers in accordance with the procedures
set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause the insurers
to pay, on behalf of Indemnitee, all amounts payable as a result of the Proceeding in accordance with the terms of the policies.
(d) In
the event of any payment under this Agreement, the Company, to the fullest extent permitted by law, shall be subrogated to the
extent of the payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action
necessary to secure those rights, including execution of any documents necessary to enable the Company to bring suit to enforce
those rights.
(e) The
Company’s obligation to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving
at the request of the Company as a director, officer, trustee, partner, manager, managing member, fiduciary, employee or agent
of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration
payments or advancement of expenses from the Enterprise. Notwithstanding any other provision of this Agreement to the contrary,
(i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration,
advancement, contribution or insurance coverage among multiple parties possessing those duties to Indemnitee prior to the Company’s
satisfaction and performance of all its obligations under this Agreement, and (ii) the Company shall perform fully its obligations
under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold
harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company.
14. DURATION
OF AGREEMENT. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee serves
as a director or officer of the Company or as a director, officer, trustee, partner, manager, managing member, fiduciary, employee
or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise which Indemnitee
serves at the request of the Company and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding
(including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 8.3 of this Agreement)
by reason of Indemnitee’s Corporate Status, whether or not Indemnitee is acting in any such capacity at the time any liability
or expense is incurred for which indemnification or advancement can be provided under this Agreement.
15. SEVERABILITY.
If any provision or provisions of this Agreement are held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion
of any Section, paragraph or sentence of this Agreement containing the provision held to be invalid, illegal or unenforceable,
that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable
to the fullest extent permitted by law; (b) the provision or provisions shall be deemed reformed to the extent necessary to conform
to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of any Section, paragraph, sentence or clause of
this Agreement containing the provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
16. ENFORCEMENT
AND BINDING EFFECT.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby
in order to induce Indemnitee to serve as a director, officer or key employee of the Company, and the Company acknowledges that
Indemnitee is relying upon this Agreement in serving as a director, officer or key employee of the Company.
(b) Without
limiting any of the rights of Indemnitee under the Charter or Bylaws as they may be amended from time to time, this Agreement
constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral, written and implied, between the parties with respect to the subject matter hereof.
(c) The
indemnification, hold harmless, exoneration and advancement of expenses rights provided by or granted pursuant to this Agreement
shall be binding upon and be enforceable by the parties and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company),
shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or a director, officer,
trustee, general partner, manager, managing member, fiduciary, employee or agent of any other Enterprise at the Company’s
request, and shall inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators
and other legal representatives.
(d) The
Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform if no succession had taken place.
(e) The
Company and Indemnitee acknowledge that a monetary remedy for breach of this Agreement, at some later date, may be inadequate,
impracticable and difficult of proof, and further agree that a breach may cause Indemnitee irreparable harm. Accordingly, Indemnitee
may, to the fullest extent permitted by law, enforce this Agreement by seeking, among other things, injunctive relief and/or specific
performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or
specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which Indemnitee may be
entitled. Indemnitee shall, to the fullest extent permitted by law, be entitled to specific performance and injunctive relief,
including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds
or other undertaking in connection therewith. The Company acknowledges that in the absence of a waiver, a bond or undertaking
may be required of Indemnitee by a court of competent jurisdiction. The Company hereby waives any such requirement of such a bond
or undertaking to the fullest extent permitted by law.
17. MODIFICATION
AND WAIVER. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the
Company and Indemnitee. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provisions of this Agreement nor shall any waiver constitute a continuing waiver.
18. NOTICES.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been
duly given (i) if delivered by hand and receipted for by the party to whom the notice or other communication shall have been directed,
(ii) mailed by certified or registered mail with postage prepaid, on the third business day after the date on which it is so mailed
or (iii) when delivered by email, solely if delivery is confirmed:
(a) If
to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide
in writing to the Company.
(b) If
to the Company, to:
Eos
Energy Enterprises, Inc.
3920
Park Avenue
Edison,
New Jersey 08820
Attention:
Joe Mastrangelo
Email:
jmastrangelo@eosenergystorage.com
With
a copy, which shall not constitute notice, to:
Morrison
Cohen LLP
909
Third Avenue, 27th Floor
New
York, New York, 10022
Attention:
David LaGalia, Esq.
Zachary
Jacobs, Esq.
Email:
dlagalia@morrisoncohen.com
zjacobs@morrisoncohen.com
or
to any other address as may have been furnished to Indemnitee in writing by the Company.
19. APPLICABLE
LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the parties shall be governed by, and construed
and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. To the fullest
extent permitted by law, the Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or proceeding
arising out of or in connection with this Agreement shall be brought only in the Delaware Court and not in any other state or
federal court in the United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction
of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive
any objection to the laying of venue of any such action or proceeding in the Delaware Court; and (d) waive, and agree not to plead
or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient
forum, or is subject (in whole or in part) to a jury trial. To the fullest extent permitted by law, the parties hereby agree that
the mailing of process and other papers in connection with any such action or proceeding in the manner provided by Section 18
or in any other manner permitted by law, shall be valid and sufficient service thereof.
20. IDENTICAL
COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to
be an original but all of which together shall constitute one and the same Agreement. Delivery of an executed counterpart of a
signature page to this Agreement by facsimile or electronic transmission in portable document format (.pdf) shall be effective
as delivery of a manually executed counterpart of this Agreement. Only one counterpart signed by the party against whom enforceability
is sought needs to be produced to evidence the existence of this Agreement.
21. MISCELLANEOUS.
Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of the paragraphs
of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect
the construction thereof.
22. PERIOD
OF LIMITATIONS. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company
against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two
years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished
and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that
if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
23. ADDITIONAL
ACTS. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is
required to the fullest extent permitted by law, the Company undertakes to cause the act, resolution, approval or other procedure
to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.
24. MAINTENANCE
OF INSURANCE. The Company shall use commercially reasonable efforts to obtain and maintain in effect during the entire period
for which the Company is obligated to indemnify the Indemnitee under this Agreement, one or more policies of insurance with reputable
insurance companies to provide the officers/directors of the Company with coverage for losses from wrongful acts and omissions
and to ensure the Company’s performance of its indemnification obligations under this Agreement. Indemnitee shall be covered
by the policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director
or officer under the policy or policies. In all such insurance policies, Indemnitee shall be named as an insured in such a manner
as to provide Indemnitee with the same rights and benefits as are accorded to the most favorably insured of the Company’s
directors and officers.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have caused this Indemnity Agreement to be signed as of the day and year first above written.
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EOS ENERGY ENTERPRISES, INC.
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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Title:
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[Signature
Page to Indemnity Agreement]
Exhibit 16.1
November 20, 2020
Securities and Exchange Commission
100 F Street, N.E.
Washington, DC 20549
Commissioners:
We have read the statements made by B. Riley Principal Merger Corp. II (n/k/a Eos Energy Enterprise, Inc.) under Item 4.01 of its Form
8-K dated November 20, 2020. We agree with the statements concerning our Firm in such Form 8-K; we are not in a position to agree or disagree
with other statements of B. Riley Principal Merger Corp. II (n/k/a Eos Energy Enterprise, Inc.) contained therein.
Very truly yours,
On November 12, 2020, the
Business Combination was approved by the stockholders of the Company at a special meeting (the “Special Meeting”).
The Business Combination was completed on November 16, 2020. In connection with the Business Combination, 6,442,195 shares of the
Company’s common stock were redeemed at a per share price of approximately $10.10. Upon the Closing, the Company had 49,813,547
shares of common stock outstanding, 32,421,362 of which were held by non-affiliates of the Company.