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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 5, 2023
FLUENCE ENERGY, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-40978 |
|
87-1304612 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
4601 Fairfax Drive, Suite 600
Arlington, Virginia |
|
22203 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
(833) 358-3623
(Registrant’s telephone number, including
area code)
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading
Symbol(s) |
|
Name of each exchange
on which registered |
Class A Common Stock, $0.00001 par value per share |
|
FLNC |
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The Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 3.02 |
Unregistered Sales of Equity Securities. |
On December 6, 2023, AES Grid Stability, LLC (“AES Grid Stability”)
provided a notice of exercise of its redemption right pursuant to the terms of the Third Amended and Restated Limited Liability Company
Agreement of Fluence Energy, LLC (the “LLC Agreement”) with respect to 7,087,500 common units of Fluence Energy, LLC, the
sole direct subsidiary of Fluence Energy, Inc. (the “Company”), together with the corresponding cancellation of an equivalent
number of shares of the Company’s Class B-1 common stock (the “AES Redemption”). The Company elected to settle the AES
Redemption through the issuance of 7,087,500 shares of the Company’s Class A common stock (the “AES Shares”). Settlement
of the AES Redemption occurred on December 8, 2023. The AES Shares were issued in reliance upon an exemption from registration pursuant
to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), on the basis that such issuance does
not involve a public offering.
On December 5, 2023, the Company entered into an underwriting agreement
(the “Underwriting Agreement”) with J.P. Morgan Securities LLC, Barclays Capital Inc. and Morgan Stanley & Co. LLC, as
the representatives (the “Representatives”) of the underwriters named in Schedule I thereto (the “Underwriters”),
and certain of the Company’s stockholders, including AES Grid Stability, Siemens Pension-Trust e.V. and Qatar Holding LLC (collectively
the “Selling Stockholders”), relating to an underwritten public offering (the “Offering”) of 18,000,000 shares
(the “Shares”) of the Company’s Class A common stock by the Selling Stockholders.
The Offering of the Shares by the Selling Stockholders was made
pursuant to an automatic shelf registration statement on Form S-3 (Registration No. 333-273939) (the “Registration
Statement”) that became effective under the Securities Act when filed with the U.S. Securities and Exchange Commission (the
“SEC”) on August 11, 2023, a prospectus included in the Registration Statement, and a preliminary prospectus supplement
and final prospectus supplement, filed with the SEC on December 5, 2023 and December 7, 2023, respectively.
The Offering closed on December 8, 2023. The Company did not
sell any of its shares of Class A common stock in the Offering and the Company will not receive any of the proceeds from the
sale of the Shares.
The Underwriting Agreement contains customary representations, warranties
and covenants, customary conditions to closing, indemnification obligations of the Company, the Representatives, the Selling Stockholders
and the Underwriters, including for liabilities under the Securities Act, and other obligations of the parties. The representations, warranties
and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely
for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties. The foregoing
description of the Underwriting Agreement does not purport to be complete and is subject to and qualified in its entirety by reference
to the full text of the Underwriting Agreement, which is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated
herein by reference.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
|
Fluence Energy, Inc. |
|
|
|
Date: December 8, 2023 |
By: |
/s/ Manavendra Sial |
|
Name: |
Manavendra Sial |
|
Title: |
Chief Financial Officer |
Exhibit 1.1
18,000,000 Shares
FLUENCE ENERGY, INC.
CLASS A COMMON STOCK, PAR VALUE $0.00001
PER SHARE
UNDERWRITING AGREEMENT
December 5, 2023
December 5, 2023
J.P. Morgan Securities LLC
Barclays Capital Inc.
Morgan Stanley & Co. LLC
As Representatives of the several
Underwriters named in Schedule I hereto
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o Morgan Stanley & Co. LLC,
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Certain stockholders named
in Schedule III hereto (the “Selling Stockholders”) of Fluence Energy, Inc., a Delaware corporation (the “Company”),
propose to sell to the several Underwriters named in Schedule I hereto (the “Underwriters”), an aggregate of 18,000,000
shares of its Class A common stock, par value $0.00001 per share (the “Shares”). The Shares of the Company outstanding
are hereinafter referred to as the “Common Stock.” The Company is a Delaware corporation, a holding company and the
sole managing member of Fluence Energy, LLC, a Delaware limited liability company.
The Company has prepared
and filed with the U.S. Securities and Exchange Commission (the “Commission”) a shelf registration statement on Form S-3
(File No. 333-273939) (the “Registration Statement”) covering the public offering and sale of certain securities,
including the Shares, which has been declared effective by the Commission. Such Registration Statement, as of any time, means as amended
by any post-effective amendments thereto to such time, including the exhibits and any schedules thereto at such time, the documents incorporated
or deemed to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the Securities Act of 1933,
as amended (the “Securities Act”) and the documents otherwise deemed to be part thereof as of such time pursuant to
430B under Securities Act regulations (“Rule 430B”), is referred to herein as the “Registration Statement;”
provided, however, that the “Registration Statement” without reference to a time means such registration statement
as amended by any post-effective amendments thereto as of the time of the first contract of sale for the Securities, which time shall
be considered the “new effective date” such registration statement with respect to the Shares within the meaning of paragraph
(f)(2) of Rule 430B, including the amendments thereto, the exhibits and schedules thereto as of such time, the documents incorporated
by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be part
thereof as of such time pursuant to Rule 430B. If the Company has filed an abbreviated registration statement to register additional
Shares of Common Stock pursuant to Rule 462(b) under the Securities Act (a “Rule 462 Registration Statement”),
then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration
Statement.
For purposes of this Underwriting
Agreement (this “Agreement”), “free writing prospectus” has the meaning set forth in Rule 405
under the Securities Act, “preliminary prospectus” shall mean each prospectus filed by the Company pursuant to the
provisions of Rule 424(b) under the Securities Act, that omitted information pursuant to Rule 430B under the Securities
Act that was used after the effectiveness of the Registration Statement and prior to the execution and delivery of this Agreement, the
“Time of Sale Prospectus” means the preliminary prospectus as part of the Registration Statement together with the
documents and pricing information set forth in Schedule II hereto, and “broadly available road show” means a “bona
fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without
restriction to any person. The final prospectus, in the form first furnished or made available to the Underwriters for use in connection
with the offering of the Shares including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item
12 of Form S-3 under the 1933 Act, are collectively referred to as the “Prospectus.” For purposes of this Agreement,
(a) except where otherwise expressly provided, the term “affiliate” has the meaning set forth in Rule 405
under the Securities Act; (b) the term “business day” means any day other than a day on which banks are permitted
or required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in Rule 405
under the Securities Act. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time
of Sale Prospectus,” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of
the date hereof.
1. Representations
and Warranties of the Company. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The
Company meets the requirements for use of Form S-3 under the 1933 Act. Each of the Registration Statement and any post-effective
amendment thereto has become effective; no stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto is in effect, and no proceedings for such purpose or pursuant to Section 8A under the Securities Act are pending
before or, to the knowledge of the Company, threatened by the Commission. No order preventing or suspending the use of any preliminary
prospectus or any free writing prospectus has been issued by the Commission.
(b) (i) Each
of the Registration Statement and any post-effective amendment thereto, at the time of its effectiveness, each deemed effective pursuant
to Rule 430B(f)(2) under the Securities Act, did not contain and, as amended or supplemented, if applicable, as of the date
of such amendment or supplement, will not contain any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement, the Time of Sale
Prospectus and the Prospectus comply and, as amended or supplemented, if applicable, will as of the date of such amendment or supplement,
comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the
Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not
yet available to prospective purchasers and at the Closing Date (as defined in Section 5), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not contain, as of the date of such amendment or supplement, any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus, as of its date, does
not contain and, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement and as of
the Closing Date, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus
based upon information relating to any Underwriter furnished to the Company in writing by or on behalf of any such Underwriter through
the Representatives expressly for use therein.
(c) The
Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities
Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has
been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing prospectus, if any, that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies
or, if filed after the effective time of this Agreement, will comply as of the date of such filing in all material respects with the
applicable requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for
the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, each furnished to the Representatives
before first use, the Company has not prepared, used or referred to, and will not, without the Representatives’ prior consent,
prepare, use or refer to, any free writing prospectus.
(d) The
Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing (to the
extent the concept of good standing is applicable in such jurisdiction) in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good
standing (to the extent the concept of good standing is applicable in such jurisdiction) would not reasonably be expected to, singly
or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each
subsidiary of the Company has been duly incorporated, organized or formed, is validly existing as a corporation or other business entity
in good standing under the laws of the jurisdiction of its incorporation (to the extent the concept of good standing is applicable in
such jurisdiction), organization or formation, has the corporate or other business entity power and authority to own or lease its property
and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction (to the extent the concept of good standing is applicable
in such jurisdiction) in which the conduct of its business or its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing (to the extent the concept of good standing is applicable in
such jurisdiction) would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock or other equity interests of each subsidiary of the Company have been duly and validly
authorized and issued (to the extent such concepts are applicable in such jurisdictions), are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except for any such liens, encumbrances,
equity or claims (i) that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries
taken as a whole or (ii) pursuant to any credit facility of the Company or its subsidiaries described in Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(f) This
Agreement has been duly authorized, executed and delivered by the Company.
(g) The
authorized capital stock of the Company conforms as to legal matters, in all material respects, to the description thereof contained
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(h) The
shares of Common Stock outstanding to be sold by the Selling Stockholders have been duly authorized and are validly issued, fully paid
and non-assessable.
(i) The
Shares to be sold by the Selling Stockholders have been duly authorized and, when issued, delivered and paid for in accordance with the
terms of this Agreement, will be duly and validly issued and fully paid and non-assessable, and the Shares to be sold by the Selling
Stockholders will not be subject to any preemptive or similar rights that have not been validly waived.
(j) The
execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene
any provision of (i) applicable law, (ii) the certificate of incorporation and bylaws of the Company, (iii) any agreement
or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as
a whole, or to which any of the property or assets of the Company or any of its subsidiaries is subject, or (iv) any judgment, order
or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary, except, in the case of clauses
(i), (iii) and (iv), as would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company
and its subsidiaries, taken as a whole, or adversely affect the ability of the Company to perform its obligations under this Agreement
and no consent, approval, authorization or order of, or qualification with, any governmental body, agency or court is required for the
performance by the Company of its obligations under this Agreement, except such as have been obtained or waived, or may be required by
the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of the Financial Industry
Regulatory Authority (“FINRA”) in connection with the offer and sale of the Shares.
(k) There
has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in
the Time of Sale Prospectus.
(l) There
are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of its subsidiaries is subject (A) other than (i) proceedings
accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and
(ii) proceedings that would not reasonably be expected to, singly or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations under this Agreement or
to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or
(B) that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so
described in all material respects; and there are no statutes, regulations, contracts or other documents to which the Company or any
of its subsidiaries is subject or by which the Company or any of its subsidiaries is bound that are required to be described in the Registration
Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described
in all material respects or filed as required.
(m) Each
preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the applicable requirements
of the Securities Act and the applicable rules and regulations of the Commission thereunder.
(n) The
Company is not, and immediately after giving effect to the offering and sale of the Shares will not be, required to register as an “investment
company” as such term is defined in the Investment Company Act of 1940, as amended.
(o) The
Company and each of its subsidiaries (i) are in compliance with all applicable foreign, federal, state and local laws and regulations
relating to climate change, to the protection of human health and safety, the environment or natural resources, or to hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received and maintained all
permits, licenses or other approvals required of them under applicable Environmental Laws necessary to conduct their respective businesses
as presently conducted and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive and maintain required permits, licenses or other approvals or failure
to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, be reasonably expected
to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(p) (i) There
are no costs, obligations or liabilities associated with Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to third parties), or any obligations to combat, respond to
or mitigate the effects of climate change which would, singly or in the aggregate, be reasonably expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole and (ii) neither the Company nor any of its subsidiaries is aware of
any pending or threatened notice, claim, proceeding or investigation which would be reasonably expected lead to liability under Environmental
Laws, except where the potential liability or obligation would not, individually or in the aggregate, be reasonably expected to have
a material adverse effect on the Company and its subsidiaries, taken as a whole, except where the potential liability or obligation would
not, individually or in the aggregate, be reasonably expected to have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or result in monetary sanctions in excess of $300,000.
(q) Except
as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, or validly waived or complied with in connection
with the sale of the Shares contemplated hereby, there are no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement.
(r) (i) None
of the Company or any of its subsidiaries or affiliates, or any director or officer thereof, or, to the Company’s knowledge, any
employee, agent or representative of the Company or of any of its subsidiaries or affiliates, has taken or will take any action in furtherance
of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything
else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned
or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any
of the foregoing, or any political party or party official or candidate for political office) (“Government Official”)
in order to unlawfully influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the
Company and each of its subsidiaries and affiliates have conducted their businesses in compliance with applicable anti-corruption laws
and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance
with such laws and with the representations and warranties contained herein; and (iii) neither the Company nor any of its subsidiaries
will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization
of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(s) The
operations of the Company and each of its subsidiaries are and have been conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and
the applicable anti-money laundering statutes of jurisdictions where the Company and each of its subsidiaries conduct business, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(t) (i) None
of the Company, any of its subsidiaries, or any director or officer thereof, or, to the Company’s knowledge, any employee, agent,
affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that
is, or is owned or controlled by one or more Persons that are:
(A) the
subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the
United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), or
(B) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, the so-called
Donetsk People’s Republic and Luhansk People’s Republic, the non-government controlled areas of Zaporizhzhia and Kherson,
Cuba, Iran, North Korea and Syria).
(ii) The
Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds
to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether
as underwriter, advisor, investor or otherwise).
(iii) The
Company and each of its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings
or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject
of Sanctions.
(u) Subsequent
to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus,
(i) the Company and its subsidiaries, taken as a whole, have not incurred any material liability or obligation, direct or contingent,
nor entered into any material transaction; (ii) the Company has not purchased any of its outstanding capital stock, other than from
employees or other service providers in connection with such person’s termination of service from the Company or its subsidiaries
pursuant to the existing terms of the agreements or equity compensation plans described in the Time of Sale Prospectus or in exercise
of the Company’s right of first refusal upon a proposed transfer, nor declared, paid or otherwise made any dividend or distribution
of any kind on its capital stock other than ordinary and customary dividends; and (iii) there has not been any material change in
the capital stock (other than the exercise, settlement or conversion of equity awards, warrants or convertible notes or loans or grants
of equity awards or forfeiture of equity awards outstanding as of such respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, in each case granted pursuant to the equity compensation plans
described in the Time of Sale Prospectus), short-term debt or long-term debt of the Company and its subsidiaries, taken as a whole, except
in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(v) The
Company and each of its subsidiaries do not own any real property and have good and marketable title to all personal property owned by
them (excluding intellectual property, which is addressed exclusively in Section 1(w)) which is material to the business of the
Company and its subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described in the
Time of Sale Prospectus or such as do not materially interfere with the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under
valid, subsisting and, to the Company’s knowledge, enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries.
(w) Except
as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or except as would not reasonably
be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole, (i) the Company or one of its
subsidiaries is the sole and exclusive owner of all right, title and interest in and to all patents, inventions, copyrights, know how,
trade secrets, confidential information, trademarks, service marks, trade names, Internet domain names, and all other worldwide
intellectual property and proprietary rights (including all registrations and applications for registration of, and all goodwill associated
with, any of the foregoing) (collectively, “Intellectual Property Rights”) that are owned or purported to be owned
by the Company and its subsidiaries; (ii) the Company and its subsidiaries have the right to use all other Intellectual Property
Rights used in the conduct of their respective businesses as now conducted by them; (iii) the Intellectual Property Rights owned
by the Company and its subsidiaries and, to the Company’s knowledge, the Intellectual Property Rights exclusively licensed to the
Company and its subsidiaries, are valid, subsisting and enforceable, and there is no pending or, to the Company’s knowledge, threatened
action, suit, proceeding or claim by others challenging the ownership, validity, scope or enforceability of any Intellectual Property
Rights owned or used by the Company or any of its subsidiaries; (iv) neither the Company nor any of its subsidiaries has received
any written notice alleging any infringement, misappropriation or other violation of Intellectual Property Rights of any Person by the
Company or any of its subsidiaries; (v) to the Company’s knowledge, no Person is infringing, misappropriating or otherwise
violating, or has, in the past three (3) years, infringed, misappropriated or otherwise violated, any Intellectual Property Rights
owned or used by the Company or any of its subsidiaries; (vi) to the Company’s knowledge, neither the Company nor any of its
subsidiaries, nor the conduct and operation of the businesses of the Company and its subsidiaries, as conducted in the past three (3) years,
is infringing, misappropriating or violating or has infringed, misappropriated or violated any Intellectual Property Rights of any Person;
(vii) the Company and its subsidiaries use and have used, commercially reasonable efforts to appropriately maintain the confidentiality
of the know how, trade secrets and other confidential information of the Company and its subsidiaries the value of which to the Company
or any of its subsidiaries is contingent upon maintaining the confidentiality thereof, and, to the Company’s knowledge, no such
know how, trade secrets, or confidential information have been disclosed other than to Persons bound by confidentiality obligations restricting
the disclosure and use of such Intellectual Property Rights; and (viii) neither the Company nor any of its subsidiaries is a party
to any source code escrow contract (or a party to any contract obligating such Person to enter into a source code escrow contract or
other contract) requiring the deposit of any source code or related materials for any software owned or purported to be owned by the
Company or any of its subsidiaries, in each case, which requires the release or disclosure of any source code or related materials to
any Person in connection with the consummation of the transactions contemplated by the Prospectus.
(x) Except
as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or except as would not reasonably
be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, (i) to the extent that the
Company and its subsidiaries use, or have used, in any of the products or services of the Company or any of its subsidiaries, any software
or other materials distributed under a “free,” “open source,” or similar licensing model (“Open Source
Software”), such use is and has been in compliance with all license terms applicable to such Open Source Software; and (ii) neither
the Company nor any of its subsidiaries uses, incorporates or distributes or has used, incorporated or distributed any Open Source Software
in connection with any products or services of the Company or any of its subsidiaries in any manner that requires or has required (A) the
Company or any of its subsidiaries to permit reverse engineering of any software code or other technology owned or purported to be owned
by the Company or any of its subsidiaries or (B) any software code or other technology owned or purported to be owned by the Company
or any of its subsidiaries to be (1) disclosed or distributed in source code form, (2) licensed for the purpose of making derivative
works or (3) redistributed at no charge.
(y) Except
as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or except as would not reasonably
be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, for the past three (3) years
(i) the Company and each of its subsidiaries have been and are presently in compliance in all material respects with all of the
Company’s and each of its subsidiaries external written privacy policies, contractual obligations and applicable laws, statutes,
judgments, orders, rules, and regulations of any court or arbitrator or other governmental or regulatory authority, in each case, relating
to the collection, use, transfer, import, export, storage, protection, disposal and disclosure by the Company or any of its subsidiaries
of information defined as “personal information”, “personal data” or any equivalent term by applicable data privacy
laws (“Data Security Obligations,” and such data and information, “Personal Data”); (ii) the
Company and its subsidiaries have not received any written notification of or written complaint regarding non-compliance with any Data
Security Obligation by the Company or any of its subsidiaries; and (iii) the Company has not received written notice of any action,
suit or proceeding by or before any court or governmental agency, authority or body pending or, to the Company’s knowledge, threatened
alleging non-compliance with any Data Security Obligation by the Company or any of its subsidiaries.
(z) Except
as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and except as would not reasonably
be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, (i) the Company and its subsidiaries
own or have a valid right to access and use pursuant to a written agreement, each of their respective information technology assets and
equipment, computers, systems, networks, hardware, software, websites, and applications owned or controlled by the Company and its subsidiaries
and used in the conduct of their businesses as currently conducted by them (“IT Systems”) (A) operate and perform
in all material respects as reasonably required in connection with the operation of the business of the Company and its subsidiaries
as currently conducted and (B) do not, to the Company’s knowledge, contain any viruses, worms, trojan horses, bugs, faults
or other devices, errors, contaminants or effects that: (x) materially disrupt or adversely affect the functionality of the IT Systems,
or (y) enable or assist any Person to access without authorization the IT Systems or Personal Data; (ii) the Company and each
of its subsidiaries have (A) established and maintain commercially reasonable technical and organizational measures designed to
protect the material IT Systems, as well as Personal Data, and have established and maintain, commercially reasonable information technology,
information security, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption,
technological and physical safeguards and business continuity/disaster recovery and security plans that are designed to protect against
and prevent any material breach or unauthorized, access, disablement, or other material compromise or misuse of the IT Systems or the
material destruction, loss, unauthorized distribution, use, misappropriation or modification of any Personal Data (“Breach”)
and (B) taken commercially reasonable steps to ensure that any third party with access to or otherwise processing Personal Data
on behalf of the Company or any of its subsidiaries has implemented and maintained appropriate safeguards; (iii) to the Company’s
knowledge, there has been no such Breach, and the Company and its subsidiaries have not been notified of and have no knowledge of any
event or condition that would reasonably be expected to result in any such Breach; and (iv) the Company and its subsidiaries have
not provided or been legally required to provide any notices to any Person in connection with a disclosure of Personal Data.
(aa) No
material labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the Company, is imminent;
and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would reasonably be expected have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(bb) The
Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as, in the Company’s reasonable judgement, are customary in the businesses in which they are engaged; neither the
Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of
its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, singly
or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(cc) The
Company and each of its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective businesses as presently conducted, except where the failure to obtain
such certificates, authorizations or permits would not, singly or in the aggregate, be reasonably expected to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has received any written
notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(dd) The
financial statements included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, together with the
related schedules and notes thereto, comply as to form in all material respects with the applicable accounting requirements of the Securities
Act and present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates
shown and its results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity
with generally accepted accounting principles in the United States (“U.S. GAAP”) applied on a consistent basis throughout
the periods covered thereby except for any normal year-end adjustments in the Company’s quarterly financial statements. The other
financial information included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus has been derived
from the accounting records of the Company and its consolidated subsidiaries and presents fairly in all material respects the information
shown thereby. The statistical, industry-related and market-related data included in each of the Registration Statement, the Time of
Sale Prospectus and the Prospectus are based on or derived from sources which the Company reasonably and in good faith believes are reliable
and accurate and such data is consistent with the sources from which they are derived, in each case in all material respects. Except
as included therein, no historical or pro forma financial statements or supporting schedules are required to be included in the Registration
Statement, the Time of Sale Prospectus or the Prospectus under the Securities Act or the rules and regulations promulgated thereunder.
All disclosures contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus regarding “non-GAAP financial
measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation
G of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and Item 10 of Regulation S-K of the Securities
Act, to the extent applicable.
(ee) Ernst &
Young LLP, who have certified certain financial statements of the Company and its subsidiaries and delivered its report with respect
to the audited consolidated financial statements and schedules filed with the Commission as part of the Registration Statement and included
in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, is an independent registered public accounting
firm with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder adopted
by the Commission and the Public Company Accounting Oversight Board (United States).
(ff) The
Company and its subsidiaries, taken as a whole, maintain a system of internal control over financial reporting (as such term is defined
in Rule 13a-15(f) under the Exchange Act) designed by, or under the supervision of, the Company’s principal executive
officer and principal financial officer, or persons performing similar functions, to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements for external purposes in accordance with U.S. GAAP and provides reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with U.S. GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences and (v) and the interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement fairly presents the information called for in all material respects and is prepared in accordance
with the Commission’s rules and guidelines applicable thereto. Except as described in the Registration Statement, the Time
of Sale Prospectus and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no
material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change
in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial reporting. Except as disclosed in the Time of Sale Prospectus, the Company
maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial
officer by others within those entities; and such disclosure controls and procedures are effective.
(gg) Except
as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company has not sold, issued or distributed
any shares of Common Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under,
or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans
or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(hh) The
Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date
of this Agreement or have requested extensions thereof (except where the failure to file would not be reasonably expected to, singly
or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole) and have paid all taxes required
to be paid thereon (except for cases in which the failure to file or pay would not be reasonably expected to, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a whole, or, except as currently being contested in good
faith and for which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no tax deficiency
has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries
have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its
subsidiaries and which could reasonably be expected to have) a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(ii) The
Company (i) has not alone engaged in any Testing-the-Waters Communication with any person other than Testing-the-Waters Communications
with the consent of the Representatives with entities that are reasonably believed to be qualified institutional buyers within the meaning
of Rule 144A under the Securities Act or institutions that are reasonably believed to be accredited investors within the meaning
of Rule 501 under the Securities Act and (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters
Communications. The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters
Communications. The Company has not distributed any Testing-the-Waters Communication that is a written communication within the meaning
of Rule 405 under the Securities Act. “Testing-the-Waters Communication” means any communication with potential
investors undertaken in reliance on Section 5(d) or Rule 163B of the Securities Act.
(jj) As
of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers,
none of (A) the Time of Sale Prospectus, (B) any free writing prospectus, when considered together with the Time of Sale Prospectus,
and (C) any individual Testing-the-Waters Communication, when considered together with the Time of Sale Prospectus, included, includes
or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through or on behalf of the Representatives for use therein.
(kk) Neither
the Company nor any of its subsidiaries has any securities rated by any “nationally recognized statistical rating organization,”
as such term is defined in Section 3(a)(62) of the Exchange Act.
(ll) (i) Each
employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA
(other than any “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA (a “Multiemployer
Plan”)) for which the Company or any member of its “Controlled Group” (defined as any entity, whether or not incorporated,
that is under common control with the Company within the meaning of Section 4001(a)(14) of ERISA or any entity that would be regarded
as a single employer with the Company under Section 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended
(the “Code”)) would have any liability (each, a “Plan”) has been maintained in compliance with its terms
and the requirements of any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Code;
(ii) for each Plan, no Plan has failed (whether or not waived), or is reasonably expected to fail, to satisfy the minimum funding
standards (within the meaning of Section 302 of ERISA or Section 412 of the Code) applicable to such Plan; (iii) no Plan
is, or is reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA) and no
“Multiemployer Plan” is in “endangered status” or “critical status” (within the meaning of Sections
304 and 305 of ERISA) (iv) except to the extent that notice would be waived by applicable regulation, no “reportable event”
(within the meaning of Section 4043(c) of ERISA and the regulations promulgated thereunder) has occurred or is reasonably expected
to occur; and (v) neither the Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the Plan or premiums to the Pension Benefit Guarantee Corporation, in
the ordinary course and without default) in respect of a Plan or Multiemployer Plan, except in each case with respect to the events or
conditions set forth in (i) through (v) hereof, as would not, individually or in the aggregate, have a material adverse effect.
(mm) No
subsidiary of the Company is currently prohibited, directly or indirectly, under any agreement or other instrument to which it is a party
or is subject, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock
or similar ownership interest, from repaying to the Company any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company, except for any dividend, distribution,
repayment or transfer that is prohibited pursuant to any credit facility of the Company’s subsidiaries described in the Registration
Statement, the Time of Sale Prospectus and the Prospectus.
2. Representations
and Warranties by the Selling Stockholders. Each Selling Stockholder, severally and not jointly, represents and warrants to each
of the Underwriters that:
(a) Except
(A) as will have been obtained on or prior to the Closing Date for the registration under the Securities Act of the Shares; (B) as
may be required under foreign or state securities (or Blue Sky) laws or by FINRA or by the Nasdaq Global Select Market in connection
with the purchase and distribution of the Shares by the Underwriters; and (C) as would not impair in any material respect the ability
of such Selling Stockholder to consummate its obligations hereunder, all consents, approvals, authorizations and orders necessary for
the execution and delivery by such Selling Stockholder of this Agreement and for the sale and delivery of the Shares to be sold by such
Selling Stockholder hereunder, have been obtained or will be obtained on or prior to the Closing Date; and such Selling Stockholder has
full right, power and authority to enter into this Agreement and has or will have at the Closing Date, full right, power and authority
to sell, assign, transfer and deliver the Shares to be sold by such Selling Stockholder hereunder;
(b) The
sale of the Shares to be sold by such Selling Stockholder hereunder and the compliance by such Selling Stockholder with this Agreement
and the consummation of the transactions herein and contemplated in the Time of Sale Prospectus will not (i) conflict with or result
in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which such Selling Stockholder is a party or by which such Selling Stockholder
is bound or to which any of the property or assets of such Selling Stockholder is subject, (ii) result in any violation of the provisions
of the charter or by-laws or similar organizational documents of such Selling Stockholder or (iii) result in any violation of any
statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over such Selling Stockholder
or any property or assets of such Selling Stockholder, except in the case of (i) and (iii), as would not, individually or in the
aggregate, reasonably be expected to materially impact such Selling Stockholder’s ability to perform its obligations under this
Agreement;
(c) Upon
payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the
Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by The Depository Trust Company
(“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on
the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse
claim (within the meaning of Section 8 105 of the New York Uniform Commercial Code (the “UCC”)) to such Shares),
(A) DTC shall be a “protected purchaser” of such Shares within the meaning of Section 8 303 of the UCC, (B) under
Section 8 501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action
based on any “adverse claim”, within the meaning of Section 8 102 of the UCC, to such Shares may be asserted against
the Underwriters with respect to such security entitlement; for purposes of this representation, such Selling Stockholder may assume
that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee
designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and
applicable law, (y) DTC will be registered as a “clearing corporation” within the meaning of Section 8 102 of the
UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to
the UCC;
(d) Such
Selling Stockholder has not taken and will not take, directly or indirectly, any action that is designed to or that might reasonably
be expected to cause or result in unlawful stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(e) To
the extent that any statements or omissions made in the Registration Statement, the Time of Sale Prospectus, the Prospectus or any amendment
or supplement thereto are made in reliance upon and in conformity with the Selling Stockholder Information (as defined below), such Registration
Statement and Time of Sale Prospectus did not, and the Prospectus and any further amendments or supplements to the Registration Statement
and the Prospectus will not, when they become effective or are filed with the Commission, as the case may be, contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
“Selling Stockholder Information” consists solely of the information with respect to such Selling Stockholder in the
beneficial ownership table under the caption “Selling Securityholders” in the Time of Sale Prospectus and the Prospectus;
(f) In
order to document the Underwriters’ compliance with the reporting and withholding provisions of the Tax Equity and Fiscal Responsibility
Act of 1982 with respect to the transactions herein contemplated, such Selling Stockholder will deliver to you prior to or at the Closing
Date a properly completed and executed United States Treasury Department Form W-8 or W-9 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof);
(g) Other
than the Registration Statement, the Time of Sale Prospectus and the Prospectus, such Selling Stockholder (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any Issuer Free Writing Prospectus, or Written Testing-the-Waters Communication, other
than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134
under the Securities Act or (ii) the documents listed on Schedule II, each electronic road show and any other written communications
approved in writing in advance by the Company and the Underwriters.
(h) The
obligations of such Selling Stockholder hereunder shall not be terminated by operation of law, whether by the dissolution of such Selling
Stockholder or by the occurrence of any other event; if such Selling Stockholder shall be dissolved, or if any other such event should
occur, before the delivery of the Shares to be sold by such Selling Stockholder hereunder, such Shares shall be delivered by or on behalf
of such Selling Stockholder in accordance with the terms and conditions of this Agreement; and
(i) Such
Selling Stockholder is not prompted by any material non-public information concerning the Company or any of its subsidiaries that is
not disclosed in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(j) Such
Selling Stockholder will not, directly or knowingly indirectly, use the proceeds of the offering contemplated by this Agreement, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other individual or entity in any manner
that will result in a violation of any applicable Sanctions.
3. Agreements
to Sell and Purchase. Each Selling Stockholder hereby agrees to sell to the several Underwriters, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the terms and conditions hereinafter stated, agrees, severally
and not jointly, to purchase from each Selling Stockholder the respective numbers of Shares set forth in Schedule I hereto opposite its
name at $22.05 a share (the “Purchase Price”).
4. Terms
of Public Offering. The Selling Stockholders are advised by the Representatives that the Underwriters propose to make a public offering
of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in the
Representatives’ judgment is advisable. The
Selling Stockholders are further advised by the Representatives that the Shares are to be offered to the public as set forth on Schedule
II (the “Public Offering Price”).
5. Payment
and Delivery. Payment for the Shares to be sold by the Selling Stockholders shall be made to such Selling Stockholder in Federal
or other funds immediately available in New York City against delivery of such Shares for the respective accounts of the several Underwriters
at 10:00 a.m., New York City time, on December 8, 2023, or at such other time on the same or such other date, not later than December 8,
2023, as shall be designated in writing by the Representatives. The time and date of such payment are hereinafter referred to as the
“Closing Date.”
The Shares shall be registered
in such names and in such denominations as the Representatives shall request in writing not later than one full business day prior to
the Closing Date. The Shares shall be delivered to the Representatives on the Closing Date, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment
of the Purchase Price therefor.
6. Conditions
to the Underwriters’ Obligations. The obligations of the Selling Stockholders to sell the Shares to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the
Registration Statement shall have become effective not later than 4:00 p.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are
subject to the following further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date:
(i) no
order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A
under the Securities Act shall be pending before or, to the Company’s knowledge, threatened by the Commission; and
(ii) there
shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus
that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed on behalf of the Company by an
executive officer of the Company, to the effect set forth in Sections 6(a)(i) and 6(a)(ii) above and to the effect that the
representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company
has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering
such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The
Underwriters shall have received on the Closing Date, a certificate, dated the Closing Date and signed by or on behalf of each Selling
Stockholder, to the effect (i) the representations and warranties of each Selling Stockholder in this Agreement are true and correct
with the same force and effect as though expressly made at and as of the Closing Date and (ii) each Selling Stockholder has complied
with all agreements and conditions on its part to be performed under this Agreement at or prior to the Closing Date.
(d) The
Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Latham & Watkins LLP, outside
counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(e) The
Underwriters shall have received on the Closing Date an opinion and negative assurance letter of Weil, Gotshal & Manges LLP,
counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(f) The
Underwriters shall have received on the Closing Date an opinion of Davis Polk & Wardwell LLP, counsel for AES Grid Stability,
LLC, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(g) The
Underwriters shall have received on the Closing Date an opinion of Simpson Thacher & Bartlett LLP, counsel for Siemens Pension-Trust
e.V., dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(h) The
Underwriters shall have received on the Closing Date an opinion of Baker McKenzie Rechtsanwaltsgesellschaft mbH von Rechtsanwälten
und Steuerberatern, German counsel for Siemens Pension-Trust e.V., dated the Closing Date, in form and substance reasonably satisfactory
to the Underwriters.
(i) The
Underwriters shall have received on the Closing Date an opinion of Cleary Gottlieb Steen & Hamilton LLP, counsel for Qatar Holding
LLC, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
(j) The
Underwriters shall have received on the Closing Date an opinion of Simmons & Simmons Middle East LLP, Qatar counsel for Qatar
Holding LLC, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters.
With respect to the negative
assurance letters to be delivered pursuant to Sections 6(d) and 6(e) above, Latham & Watkins LLP and Weil, Gotshal &
Manges LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement,
the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof,
but are without independent check or verification, except as specified.
The opinions of Latham &
Watkins LLP, Weil, Gotshal & Manges LLP, Davis Polk & Wardwell LLP, Simpson Thacher & Bartlett LLP, Baker
McKenzie Rechtsanwaltsgesellschaft mbH von Rechtsanwälten und Steuerberatern, Cleary Gottlieb Steen & Hamilton LLP and
Simmons & Simmons Middle East LLP described in Sections 6(d), 6(e), 6(f), 6(g), 6(h), 6(i) and 6(j) above, respectively,
shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(k) The
Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date,
as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young LLP, an independent registered
public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the
Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off
date” not earlier than the date hereof.
(l) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto, executed by certain stockholders, officers
and directors of the Company relating to restrictions on sales and certain other dispositions of shares of Common Stock or certain other
securities, delivered to the Representatives on or before the date hereof (the “Lock-up Agreements”), shall be in
full force and effect on the Closing Date.
7. Covenants
of the Company and the Selling Stockholders. The Company and each Selling Stockholder covenants with each Underwriter as follows:
(a) The
Company will prepare the Prospectus in a form approved by the Representatives and file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery
of this Agreement, or, if applicable, such earlier time as may be required under the Securities Act; the Company will make no further
amendment or any supplement to the Registration Statement, the preliminary prospectus or the Prospectus prior to the last time and date
for delivery of the Shares which shall be disapproved by the Representatives promptly after reasonable notice thereof; the Company will
advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed; the Company will file promptly all material
required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act; the Company will
advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any preliminary prospectus or other prospectus in respect of the Shares, of the suspension
of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the preliminary prospectus
or the Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending
the use of any preliminary prospectus or other prospectus or suspending any such qualification, to promptly use its best efforts to obtain
the withdrawal of such order.
(b) The
Company will furnish to the Representatives, at their request, without charge, as many copies of the Registration Statement (including
exhibits thereto), the preliminary prospectus and any supplements and amendments thereto or the Prospectus, as the Representatives may
reasonably request and to furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York City time
on the business day next succeeding the date of this Agreement and during the period mentioned in Section 7(e) or 7(f) below,
as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement
as the Representatives may reasonably request.
(c) The
Company agrees to furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used
by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably
object in a timely manner.
(d) Each
Selling Stockholder and the Company agrees not to take any action that would result in an Underwriter or the Company being required to
file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale
Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained
in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at the Company’s
own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that
the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time
of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented,
will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(f) If,
during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection
with sales by an Underwriter or dealer (the “Prospectus Delivery Period”), any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered
to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus
to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and
to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the
Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading
or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) The
Company will endeavor to qualify the Shares for offering and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably request; provided that nothing contained herein shall require the Company to qualify to do business
in any jurisdiction, execute a general consent to service of process in any jurisdiction or to subject itself to taxation in any jurisdiction
in which it is not otherwise subject.
(h) The
Company will make generally available (which may be satisfied by filing with the Commission on its Electronic Data Gathering Analysis
and Retrieval System (“EDGAR”)) to the Company’s security holders and to the Underwriters as soon as practicable
but in any event not later than sixteen months after the effective date of the Registration Statement an earnings statement covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement
which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(i) Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or
cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the
Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement,
any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used
by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith,
and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the Underwriters, excluding any transfer or other similar taxes
payable thereon by the Selling Stockholders pursuant to Section 7(j) below, (iii) the cost of printing or producing any
Blue Sky or legal investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses
in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification
and in connection with the Blue Sky or legal investment memorandum, (iv) the reasonable fees and disbursements of one counsel for
the Selling Stockholders, (v) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred
in connection with the review and qualification of the offering of the Shares by FINRA (provided that the amount payable by the
Company with respect to fees and disbursements of counsel for the Underwriters pursuant to subsections (iii) and (iv) shall
not exceed $40,000 in the aggregate), (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges
of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations
on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation,
expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior
approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and
50% of the cost of any aircraft chartered in connection with the road show (with the remaining 50% to be paid by the Underwriters), (ix) the
document production charges and expenses associated with printing this Agreement, and (x) all other costs and expenses incident
to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled “Indemnity and Contribution,” and the last paragraph
of Section 11 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel,
share transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make,
and all travel and other expenses of the Underwriters or any of their employees incurred by them in connection with participation in
investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, other
than the cost of aircraft chartered in connection with the roadshow, for which the Underwriters agree to pay for 50% not paid for by
the Company, as described above.
(j) Each
Selling Stockholder, solely to itself, will pay (i) any fees and expenses of counsel for such Selling Stockholder (except as contemplated
by Section 7(i)(iv)) and (ii) any transfer or other similar taxes, if any, payable upon the sale of the Shares to be sold by
such Selling Stockholder to the Underwriters under the terms of this Agreement.
(k) If
at any time during the Prospectus Delivery Period and following the distribution of any Testing-the-Waters Communication that is a written
communication within the meaning of Rule 405 under the Securities Act there occurred or occurs an event or development as a result
of which such Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent
time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense,
such Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
(l) The
Company and each Selling Stockholder will deliver to each Underwriter (or its agent), on the date of execution of this Agreement, a properly
completed and executed Certification Regarding Beneficial Owners of Legal Entity Customers, together with copies of identifying documentation,
and the Company and each Selling Stockholder undertakes to provide such additional supporting documentation as each Underwriter may reasonably
request in connection with the verification of the foregoing certification.
(m) During
a period of three (3) years from the effective date of the Registration Statement, for so long as the Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the Exchange Act, the Company will furnish to its stockholders
as soon as practicable after the end of each fiscal year an annual report (including a balance sheet and statements of income, stockholders’
equity and cash flows of the Company and its consolidated subsidiaries certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its stockholders consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail; provided that the Company will be deemed to have satisfied the requirements
of this Section 7(m) to the extent such information is filed through EDGAR.
(n) During
a period of three (3) years from the effective date of the Registration Statement, so long as the Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act, the Company will furnish to the Representatives
copies of all reports or other communications (financial or other) furnished to stockholders, and to deliver to the Representatives as
soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is listed; provided that the Company will be deemed to have
satisfied the requirements of this Section 7(n) to the extent such information is filed through EDGAR.
(o) The
Company also covenants with each Underwriter that, without the prior written consent of the Representatives on behalf of the Underwriters,
it will not, and will not publicly disclose an intention to, during the period beginning on the date of this Agreement and ending at
the close of business 90 days after the date of the Prospectus (the “Restricted Period”), (1) offer, pledge,
sell, contract to sell, sell any option, warrant or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities
substantially similar to the Common Stock, convertible into or exercisable or exchangeable for Common Stock or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise or (3) file any registration statement with the Commission relating to the offering of any
shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock; provided that confidential
or non-public submissions to the Commission of any registration statements under the Securities Act may be made if and only if (x) no
public announcement of such confidential or non-public submission shall be made during the Restricted Period and (y) the Company
shall have provided the Representatives prior written notice of its intention to confidentially submit a draft registration statement
with the Commission at least two business days prior to such confidential or non-public submission.
The restrictions contained
in the preceding paragraph shall not apply to (A) the Shares to be sold hereunder, (B) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant, the settlement of restricted stock units or share value award, or the conversion
of a convertible loan, note or other security outstanding on the date hereof as described in each of the Time of Sale Prospectus and
the Prospectus, (C) the grant of options, restricted stock units, share value awards or any other type of equity award pursuant
to employee benefit plans in effect on the date hereof and described in the Time of Sale Prospectus and the Prospectus (the “Plans”)
or the issuance of shares of Common Stock by the Company (whether upon the exercise of stock options or other equity awards) to employees,
officers, directors, advisors or consultants of the Company pursuant to the Plans, (D) the filing by the Company of a registration
statement on Form S-8 relating to issuance, vesting, exercise or settlement of equity awards granted or to be granted pursuant to
the Plans, (E) the issuance of or entry into an agreement to issue shares of Common Stock or any securities substantially similar
to the Common Stock or convertible into or exercisable or exchangeable for Common Stock in connection with one or more mergers, acquisitions
or securities, businesses, property or other assets, products or technologies, joint ventures, commercial relationships or other strategic
corporate transactions or alliances; provided that the aggregate amount of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (on an as-converted, as-exercised or as-exchanged basis) that the Company may issue or agree
to issue pursuant to this clause (E) shall not exceed 10% of the total number of shares of Common Stock of the Company issued and
outstanding immediately following the completion of the transactions contemplated by this Agreement determined on a fully diluted basis,
and provided further, that each recipient of shares of Common Stock or any securities convertible into or exercisable or exchangeable
for shares of Common Stock pursuant to this clause (E) shall execute a lock-up agreement substantially in the form of Exhibit A
hereto, or (F) facilitating the establishing of a trading plan on behalf of a shareholder, officer or director of the Company pursuant
to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such plan does not
provide for the transfer of shares of Common Stock during the Restricted Period and (ii) to the extent a public announcement or
filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such
announcement or filing shall include a statement to the effect that no transfer of shares of Common Stock may be made under such plan
during the Restricted Period.
8. Covenants
of the Underwriters. Each Underwriter, severally and not jointly, covenants with the Company not to take any action that would result
in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
9. Indemnity
and Contribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers and affiliates
of each Underwriter within the meaning of Rule 405 under the Securities Act and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection
with defending or investigating any such action or claim) that arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the Time of
Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under
the Securities Act, any road show as defined in Rule 433(h) under the Securities Act (a “road show”), the
Prospectus or any amendment or supplement thereto, or any Testing-the-Waters Communication, or arise out of, or are based upon, any omission
or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, (insofar
as related to the Prospectus, the Time of Sale Prospectus or any Testing-the-Waters Communication, in the light of the circumstances
under which they were made), not misleading, except insofar as such losses, claims, damages or liabilities arise out of, or are based
upon, any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly
for use therein, it being understood and agreed that the only such information furnished by the Underwriters through the Representatives
consists of the information described as such in subsection (c) below.
(b) Each
Selling Stockholder agrees to indemnify and hold harmless each Underwriter, the directors, officers and affiliates of each Underwriter
within the meaning of Rule 405 under the Securities Act and each person, if any, who controls any Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to the Underwriters, but only with reference to information relating to the Selling Stockholder Information.
(c) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act, and each
Selling Stockholder and each person, if any, who controls any Selling Stockholder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through the Representatives
expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus,
road show, the Prospectus or any amendment or supplement thereto or Testing-the-Waters Communication, it being understood and agreed
that the only such information furnished by any Underwriter through the Representatives consists of the following information in the
Prospectus: (i) the names of the Underwriters; (ii) the third paragraph under the caption “Underwriting;” and (iii) the
eleventh paragraph of text under the caption “Underwriting” concerning the transactions that stabilize, maintain or otherwise
affect the price of the shares.
(d) In
case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 9(a) or 9(c), such person (the “indemnified party”) shall promptly notify
the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party,
upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters
and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the
case of any such separate firm for the Selling Stockholders, such firm shall be designated in writing by the Selling Stockholders. The
indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been
a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (y) does not include
a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(e) To
the extent the indemnification provided for in Section 9(a) or 9(c) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu
of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by Section 9(e)(i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in Section 9(e)(i) above but also the relative fault
of the Company or the Selling Stockholders, as applicable, on the one hand and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other
hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from
the offering of the Shares (after deducting underwriting discounts and commissions but before deducting expenses) received by the Company
and the Selling Stockholders and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the indemnifying
party or parties on the one hand and the indemnified party or parties on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective
obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased
hereunder, and not joint.
(f) The
Company, the Selling Stockholders and the Underwriters agree that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(e). The amount
paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(e) shall
be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9,
no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(g) The
indemnity and contribution provisions contained in this Section 9(g) and the representations, warranties and other statements
of the Company and the Selling Stockholders, respectively, contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any director,
officer, or affiliate of any Underwriter and each person, if any, who controls any Underwriter, by or on behalf of the Company or by
or on behalf of any Selling Stockholder, its officers or directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Shares.
(h) The
provisions of this Section shall not affect any agreement among the Company and the Selling Stockholders with respect to indemnification.
10. Termination.
The Underwriters may terminate this Agreement by notice given by the Representatives to the Company and the Selling Stockholders, if
after the execution and delivery of this Agreement and prior to or on the Closing Date, (i) trading generally shall have been suspended
or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE American, the Nasdaq Global Select
Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade or other relevant exchanges,
(ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred
any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in the Representatives’
judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the Representatives’
judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated
in the Time of Sale Prospectus or the Prospectus.
11. Effectiveness;
Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on
such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Shares set forth opposite their respective names in Schedule I bears to the aggregate
number of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement
be increased pursuant to this Section 11 by an amount in excess of one-ninth of such number of Shares without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate
number of Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Shares to be purchased on
such date, and arrangements satisfactory to the Representatives and the Selling Stockholders for the purchase of such Shares are not
made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter
or the Selling Stockholders. In any such case either the Representatives or the Selling Stockholders shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement,
in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected.
If this Agreement shall be
terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Selling Stockholders to comply with
the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Selling Stockholders shall be unable to perform
its obligations under this Agreement other than by reason of a default by the Underwriters, the Selling Stockholders will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the reasonably incurred fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
12. Entire
Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company
and the Selling Stockholders on the one hand, and the Underwriters, on the other, with respect to the preparation of any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The
Company and each Selling Stockholder acknowledges that in connection with the offering of the Shares: (i) the Underwriters have
acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company, the Selling Stockholders or any other person,
(ii) the Underwriters owe the Company and the Selling Stockholders only those duties and obligations set forth in this Agreement,
any contemporaneous written agreements and prior written agreements (to the extent not superseded by this Agreement), if any, (iii) the
Underwriters may have interests that differ from those of the Company or the Selling Stockholders, and (iv) none of the activities
of the Underwriters in connection with the transactions contemplated herein constitutes a recommendation, investment advice, or solicitation
of any action by the Underwriters with respect to any entity or natural person. The Company and each Selling Stockholder waives to the
full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty
in connection with the offering of the Shares.
13. Recognition
of the U.S. Special Resolution Regimes. (i) In the event that any Underwriter that is a Covered Entity becomes subject to a
proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation
in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution
Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United
States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
For purposes of this Section a
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance
with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI”
as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has
the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder.
14. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic
signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law, e.g.
www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered
and be valid and effective for all purposes.
15. Applicable
Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York, without regard to the conflict of laws principles thereof.
16. Submission
to Jurisdiction. The Company and each Selling Stockholder irrevocably submits to the non-exclusive jurisdiction of any New York State
or United States Federal court sitting in The City of New York over any suit, action or proceeding arising out of or relating to this
Agreement, the Time of Sale Prospectus, the Prospectus, the Registration Statement or the offering of the Shares (each, a “Related
Proceeding”). The Company and each Selling Stockholder irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of venue of any Related Proceeding brought in such a court and any claim that any such
Related Proceeding brought in such a court has been brought in an inconvenient forum.
17. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
18. Notices.
All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed
or sent to J.P. Morgan Securities LLC, 383 Madison Avenue, New York, NY 10179 Attention: Equity Syndicate Desk (Fax: (212) 622-8358);
Barclays Capital Inc.,745 Seventh Avenue, New York, New York 10019, Attention: Syndicate Registration (Fax: (646) 834-8133), with a copy,
in the case of any notice pursuant to Section 9(d) hereof, to the Director of Litigation, Office of the General Counsel, Barclays
Capital Inc., 745 Seventh Avenue, New York, New York 10019; Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036,
Attention: Equity Syndicate Desk, with a copy to the Legal Department; and if to the Company shall be delivered, mailed or sent to Fluence
Energy, Inc., 4601 Fairfax Drive, Suite 600 Arlington, VA 22203.
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Very truly yours, |
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THE COMPANY: |
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FLUENCE ENERGY, INC. |
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By: |
/s/
Manavendra Sial |
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Name: |
Manavendra Sial |
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Title: |
Senior Vice President and Chief Financial Officer |
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By: |
/s/
Francis A. Fuselier |
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Name: |
Francis A. Fuselier |
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Title: |
Senior Vice President, General Counsel and Secretary |
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THE SELLING STOCKHOLDERS: |
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AES GRID STABILITY, LLC |
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By: |
/s/
Pablo Fekete |
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Name: |
Pablo Fekete |
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Title: |
Secretary |
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SIEMENS PENSION-TRUST E.V. |
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By: |
/s/
Mario Winklmann |
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Name: |
Mario Winklmann |
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Title: |
Authorized Signatory |
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By: |
/s/
Tobias Klein |
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Name: |
Tobias Klein |
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Title: |
Authorized Signatory |
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Qatar Holding LLC |
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By: |
/s/
Mansoor Ebrahim Al Mahmoud |
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Name: |
Mansoor Ebrahim Al Mahmoud |
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Title: |
Chief Executive Officer |
Accepted as of the date hereof
J.P. Morgan Securities LLC
Barclays Capital Inc.
Morgan Stanley & Co. LLC
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto.
J.P. Morgan Securities LLC
By: |
/s/
Bobby Wiebe |
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Name: |
Bobby Wiebe |
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Title: |
Vice President |
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Barclays Capital Inc.
By: |
/s/
Robert Stowe |
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Name: |
Robert Stowe |
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Title: |
Managing Director |
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Morgan Stanley & Co. LLC
By: |
/s/
Mauricio Dominguez |
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Name: |
Mauricio Dominguez |
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Title: |
Vice President |
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SCHEDULE I
Underwriter | |
Number
of Shares To Be Purchased | |
J.P. Morgan Securities LLC | |
| 7,200,000 | |
Barclays Capital Inc. | |
| 6,300,000 | |
Morgan Stanley & Co. LLC | |
| 4,500,000 | |
| |
| | |
Total: | |
| 18,000,000 | |
SCHEDULE II
Time of Sale Prospectus
| 1. | Preliminary Prospectus issued December 5, 2023. |
| 2. | The public offering price per share for the Shares is the price per share
paid by each applicable investor. |
| 3. | The number of Shares purchased by the Underwriters is 18,000,000. |
SCHEDULE III
Selling Stockholders
Selling Stockholder | |
Number
of Shares: | |
AES Grid Stability, LLC | |
| 7,087,500 | |
Siemens Pension-Trust e.V. | |
| 7,087,500 | |
Qatar Holding LLC | |
| 3,825,000 | |
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
December 5, 2023
J.P. Morgan Securities LLC
Barclays Capital Inc.
Morgan Stanley & Co. LLC
As Representatives of the several Underwriters named in Schedule I
of the Underwriting Agreement
c/o J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o Morgan Stanley & Co.
LLC
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
The
undersigned understands that J.P. Morgan Securities LLC, Barclays Capital Inc. and Morgan Stanley & Co. LLC (the “Representatives”)
propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Fluence Energy, Inc., a Delaware
corporation (the “Company”) and the Selling Stockholders named in Schedule III to the Underwriting Agreement, providing
for the public offering (the “Public Offering”) by the several Underwriters, including the Representatives (the “Underwriters”),
of shares of Class A common stock, par value $0.00001 per share, of the Company (the “Class A Shares”) pursuant
to a Registration Statement on Form S-3 filed with the Securities and Exchange Commission on August 11, 2023 (the “Registration
Statement”). As used herein, the term “Common Stock” refers to shares of the Company’s common stock,
including any shares of Class A Shares.
To induce the Underwriters
that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby
agrees that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, and will not publicly
disclose an intention to, during the period beginning on the date of this letter agreement (this “Lock-Up Agreement”)
and ending at the close of business 90 days after the date of the final prospectus supplement relating to the Public Offering (the “Prospectus”)
(such period, the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible
into or exercisable or exchangeable for shares of Common Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The
undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions designed
or intended, or which could reasonably be expected to lead to or result in, a sale or disposition of any shares of Common Stock, or securities
convertible into or exercisable or exchangeable for Common Stock, even if any such sale or disposition transaction or transactions would
be made or executed by someone other than the undersigned on their behalf.
The foregoing shall not apply
to:
(a) transactions
relating to Common Stock or other securities acquired in the Public Offering or in open market transactions after the completion of the
Public Offering, provided that no filing under Section 16(a) of the Exchange Act reporting a reduction in beneficial
ownership of Common Stock shall be required or shall be voluntarily made in connection with subsequent sales of Common Stock or other
securities acquired in the Public Offering or such open market transactions during the Restricted Period;
(b) transfers
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock as a bona fide gift, for bona fide estate
planning purposes or to any member of the immediate family of the undersigned or to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that (i) each recipient shall sign and deliver a lock-up
agreement substantially in the form of this Lock-Up Agreement, (ii) no filing under Section 16(a) of the Exchange Act
reporting a reduction in beneficial ownership of Common Stock shall be required or shall be voluntarily made during the Restricted Period
and (iii) and such transfer does not involve a disposition for value;
(c) transfers
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock by will or intestate succession upon
the death of the undersigned, including to the transferee’s nominee or custodian;
(d) transfers
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock that occurs by operation of law pursuant
to a qualified domestic order or in connection with a divorce settlement or other court order; provided that any filing required
under Section 16(a) of the Exchange Act during the Restricted Period shall clearly indicate in the footnotes thereto that the
filing relates to the circumstances described in this clause (d);
(e) if
the undersigned is a corporation, partnership, limited liability company or other business entity, any transfer or distribution of Common
Stock or any security convertible into or exercisable or exchangeable for Common Stock, including, without limitation, limited liability
company interests in Fluence Energy, LLC (“Units”) to limited partners, members, managers, stockholders or holders of similar
equity interests in the undersigned or to another corporation, partnership, limited liability company, trust or other business entity
that is an affiliate (as defined in Rule 405 as promulgated under the Securities Act of 1933, as amended) of the undersigned or
to any investment fund or other entity controlled or managed by the undersigned or affiliates of the undersigned, provided that
(i) each transferee shall sign and deliver a lock-up agreement substantially in the form of this Lock-Up Agreement and (ii) no
filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of Common Stock, shall be required
or shall be voluntarily made during the Restricted Period;
(f) transfers
of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to a nominee or custodian of a person
or entity to whom a disposition or transfer would be permissible under clauses (a) through (e) above, subject to the same terms
and conditions herein;
(g) transfers
to the Company of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock in connection
with the repurchase by the Company from the undersigned of shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock pursuant to a repurchase right arising in connection with the termination of the undersigned’s employment
with or provision of services to the Company; provided that any public announcement or filing under Section 16(a) of
the Exchange Act shall clearly indicate in the footnotes thereto that such transfer is being made pursuant to the circumstances described
in this clause (g);
(h) the
transfer or other disposition of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock upon
a vesting or settlement event of the Company’s securities or upon the exercise of options, restricted share units, share value
awards, warrants or other equity awards to purchase the Company’s securities (including any transfer or other disposition necessary
to generate such amount of cash needed for the payment of taxes, including estimated taxes, due as a result of such vesting or exercise
whether by means of a “net settlement” or otherwise to the Company in the case of a “cashless exercise” or “net
exercise” that is effected solely by surrender of outstanding options, restricted share units, share value awards, warrants or
other equity awards (or the Common Stock issuable upon the exercise thereof) to the Company and the Company’s cancellation of all
or a portion thereof to pay the exercise price and/or withholding tax obligations; provided that any filing under Section 16(a) of
the Exchange Act shall clearly indicate in the footnotes thereto that (i) the filing relates to the circumstances described in this
clause (h), and (ii) any shares received upon exercise or settlement of the option, restricted share unit, share value award or
other equity award or exercise of warrants are subject to a lock-up agreement substantially in the form of this Lock-Up Agreement;
(i) transfers
of Common Stock pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction after the completion
of the Public Offering that is approved by the Board of Directors of the Company and made to all holders of the Company’s capital
stock involving a Change of Control (as defined below) of the Company, provided that in the event that such tender offer, merger,
consolidation or other such transaction is not completed, the undersigned’s shares of Common Stock shall remain subject to the
provisions of this Lock-Up Agreement;
(j) establishing
trading plans pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such
plan does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement
or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding
the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock
may be made under such plan during the Restricted Period;
(k) transfers
of Common Stock pursuant to a trading plan established pursuant to Rule 10b5-1 under the Exchange Act entered into by the undersigned
prior to the date hereof; provided that any filing required under Section 16(a) of the Exchange Act during the Restricted
Period shall clearly indicate in the footnotes thereto that the filing relates to such plan;
(l) transfers
of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock to the Company or any of its
affiliates in connection with the Transactions contemplated in the Prospectus, upon exercise of the Company’s right to repurchase
or reacquire the undersigned’s Common Stock pursuant to agreements disclosed in the Prospectus and in effect on the date of the
consummation of the Public Offering, or as permitted by section 9 of the Third Amended and Restated Limited Liability Company Agreement
of Fluence Energy, LLC, including in connection with exchanges qualifying under Section 351 of the Internal Revenue Code of 1986,
as amended, provided, that any such shares of Common Stock received upon such exchange shall remain subject to the provisions of this
Lock-Up Agreement and provided further that, to the extent a public announcement or filing under the Exchange Act, if any, is required
of or voluntarily made by or on behalf of the undersigned or the Company regarding the transfer, conversion, reclassification, redemption
or exchange, as applicable, such announcement or filing shall include a statement explaining the circumstances of such transfer, or that
such transfer, conversion, reclassification, redemption or exchange, occurred pursuant to the terms of section 9 of the Third Amended
and Restated Limited Liability Company Agreement of Fluence Energy, LLC, as applicable, and no transfer of the shares of Common Stock
or other securities received upon exchange may be made during the Restricted Period other than as may be permitted by this Lock-Up Agreement;
[or]
(m) sales
of Common Stock to the Underwriters pursuant to the Underwriting Agreement[.][; or]
(n) [exchanges
of shares of Class B-1 common stock for an equivalent number of shares of Class B-2 common stock of the Company, such shares
of Class B-2 common stock shall remain subject to this Lock-up Agreement].1
Nothing in this Lock-Up Agreement
shall prevent the undersigned from making a demand for, or exercising any right with respect to, the registration of the undersigned’s
shares of Common Stock, except for any such demand or any such exercise that is publicly disclosed (or required to be publicly disclosed)
by the undersigned or any of its affiliates prior to the expiration of the Lock-Up Period; provided that in no event shall the
Company be obligated to take an action in violation of Section 7(o) of the Underwriting Agreement. The undersigned also agrees
and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of
the undersigned’s Common Stock except in compliance with the foregoing restrictions.
1 NTD: To be included in the case of AES Grid Stability,
LLC only.
The Underwriters agree that
if any Major Holder (as defined below) party to a lock-up agreement in connection with the Public Offering is in any way released from,
or receives a waiver of, any of its obligations pursuant to such lock-up agreement (including by amendment to the lock-up agreement or
otherwise) (a “Released Party”), the undersigned will be similarly and contemporaneously released or waived from its
obligations hereunder (which for the avoidance of doubt will include a release or waiver of the same percent of shares of Common Stock
as the percent of shares of Common Stock held by the Released Party that are subject to the release or waiver, with such percentage calculated
by reference to the aggregate number of shares of Common Stock beneficially owned by the Released Party and persons or entities, if any,
identified as associated with such Released Party in a footnote to the beneficial ownership table under the caption “Selling Securityholders”
of the Prospectus relating to the Public Offering). The Representatives shall provide at least three business days’ written notice
to the Company prior to the effective date of any such release or waiver (such date, the “Release Date”), stating
the percentage of shares held by such Released Party to be released, with the understanding that the Company shall use commercially reasonable
efforts to notify the undersigned that the same percentage of shares held by the undersigned as is held by the Released Party shall be
released from the restrictions set forth herein on the Release Date. For purposes of this Lock-Up Agreement, each of the following persons
is a “Major Holder”: each officer and director of the Company and each “Selling Securityholder,” as such
term is defined in the Underwriting Agreement. Notwithstanding the foregoing, no release or waiver will constitute a release or waiver
for purposes of this paragraph, if: (a) such release or waiver is granted to any individual party or parties that represent, individually
or in the aggregate with all releases or waivers under this clause (a), an amount less than or equal to 1% of the Company’s total
then outstanding Common Stock, (b) such release or waiver is effected solely to permit a transfer not involving a disposition for
value, the transferee has agreed in writing to sign and deliver a lock-up agreement substantially in the form of this Lock-Up Agreement
and any filing required under Section 16(a) of the Exchange Act during the Restricted Period related thereto shall clearly
indicate in the footnotes thereto that the transferee has delivered a lock-up agreement substantially in the form of this Lock-Up Agreement,
or (c) the release or waiver is granted due to circumstances of an emergency or hardship as determined by the Representatives in
their sole judgment.
For purposes of this letter,
“immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin.
For purposes of this letter, “Change of Control” shall mean the transfer (whether by tender offer, merger, consolidation
or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons (other
than an Underwriter pursuant to the Public Offering), of the Company’s voting securities if, after such transfer, such person or
group of affiliated persons would hold more than 50% of the outstanding voting securities of the Company (or the surviving entity).
The undersigned understands
that the Company and the Underwriters are relying upon this Lock-Up Agreement in proceeding toward consummation of the Public Offering.
The undersigned further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the undersigned’s heirs,
legal representatives, successors and assigns.
The undersigned acknowledges
and agrees that the Underwriters have not provided any recommendation or investment advice nor have the Underwriters solicited any action
from the undersigned with respect to the Public Offering of the Common Stock and the undersigned has consulted their own legal, accounting,
financial, regulatory and tax advisors to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although
the Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to you in
connection with the Public Offering, the Underwriters are not making a recommendation to you to participate in the Public Offering or
sell any shares of Common Stock at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation
is intended to suggest that any Underwriter is making such a recommendation.
The undersigned hereby consents
to receipt of this Lock-Up Agreement in electronic form and understands and agrees that this letter agreement may be signed electronically.
If any signature is delivered by facsimile transmission, electronic mail, or otherwise by electronic transmission evidencing an intent
to sign this Lock-Up Agreement (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com),
such facsimile transmission, electronic mail or other electronic transmission shall create a valid and binding obligation of the undersigned
with the same force and effect as if such signature were an original. Execution and delivery of this Lock-Up Agreement by facsimile transmission,
electronic mail or other electronic transmission is legal, valid and binding for all purposes.
Whether or not the Public
Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant
to an Underwriting Agreement, the terms of which are subject to negotiation among the Company, the Selling Stockholders and the Underwriters.
This Lock-Up Agreement shall
automatically terminate and the undersigned will be released from all obligations hereunder upon the earliest to occur, if any, of (a) the
Company and the Selling Stockholders, on the one hand, or the Representatives, on the other hand, advising the other in writing that
it has determined not to proceed with the Public Offering prior to the execution of the Underwriting Agreement, (b) the date the
Registration Statement is withdrawn, if prior to the execution of the Underwriting Agreement and the closing of the Public Offering,
(c) the date the Underwriting Agreement is terminated, if prior to the closing of the Public Offering, and (d) December 15,
2023, if the Underwriting Agreement has not been executed by such date.
This Lock-Up Agreement and
any claim, controversy or dispute arising thereunder or related hereto shall be governed by and construed in accordance with the laws
of the State of New York, without regard to the conflict of laws principles thereof.
[Signature Pages Follow]
Very truly yours,
IF AN INDIVIDUAL: |
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IF AN ENTITY: |
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(duly authorized
signature) |
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(please print
complete name of entity) |
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Name: |
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By: |
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(please print full name) |
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(duly authorized signature) |
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Name: |
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(please print full name) |
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Title: |
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(please print full title) |
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Address: |
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E-mail: |
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EXHIBIT B
FORM OF WAIVER OF LOCK-UP
, 20
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered
to you in connection with the offering by the Selling Stockholders of Fluence Energy, Inc. (the “Company”) of
shares of Common Stock, par value $0.00001 per share (the “Common Stock”), of the Company and the lock-up agreement
dated ,
20 (the “Lock-up Agreement”), executed by you in connection with such offering, and your request
for a [waiver] [release] dated ,
20 , with respect to
shares of Common Stock (the “Shares”). Defined terms used and not otherwise defined herein shall have the meanings
set forth in the Lock-up Agreement.
J.P. Morgan Securities LLC, Barclays Capital
Inc. and Morgan Stanley & Co. LLC hereby agree to [waive] [release] the transfer restrictions set forth in the Lock-up Agreement,
but only with respect to the Shares, effective ,
20 . This letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived]
[released] hereby, the Lock-up Agreement shall remain in full force and effect.
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Very truly yours, |
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J.P. Morgan Securities LLC
Barclays
Capital Inc. |
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Morgan Stanley & Co. LLC |
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Acting severally on behalf of themselves
and the several Underwriters named in Schedule I hereto |
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By: |
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Name: |
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Title: |
cc: Company
v3.23.3
Cover
|
Dec. 05, 2023 |
Cover [Abstract] |
|
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Dec. 05, 2023
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Entity File Number |
001-40978
|
Entity Registrant Name |
FLUENCE ENERGY, INC.
|
Entity Central Index Key |
0001868941
|
Entity Tax Identification Number |
87-1304612
|
Entity Incorporation, State or Country Code |
DE
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Entity Address, Address Line One |
4601 Fairfax Drive
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Entity Address, Address Line Two |
Suite 600
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Entity Address, City or Town |
Arlington
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Entity Address, State or Province |
VA
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Entity Address, Postal Zip Code |
22203
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City Area Code |
833
|
Local Phone Number |
358-3623
|
Written Communications |
false
|
Soliciting Material |
false
|
Pre-commencement Tender Offer |
false
|
Pre-commencement Issuer Tender Offer |
false
|
Title of 12(b) Security |
Class A Common Stock, $0.00001 par value per share
|
Trading Symbol |
FLNC
|
Security Exchange Name |
NASDAQ
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Fluence Energy (NASDAQ:FLNC)
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Fluence Energy (NASDAQ:FLNC)
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