eosenergyenterprisesinc-






EXECUTION VERSION  #9936593 v5 \027606 \0401  Employment Agreement  This Employment Agreement (this “Agreement”) is dated as of March 25, 2021 (the  “Commencement Date”), and is made by and between Eos Energy Enterprises, Inc., a Delaware  corporation (the “Company”), and Sagar Kurada (“Executive”).  W i t n e s s e t h:  WHEREAS, the Company is a publicly-traded entity whose common stock is listed on The  Nasdaq Capital Market (“Nasdaq”);    WHEREAS, the Company desires to employ Executive as the Chief Financial Officer of  the Company, and Executive desires to be so employed, in each case, on the terms and conditions  set forth herein.  NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants  and promises contained herein, and for other good and valuable consideration, the Company and  Executive hereby agree as follows:  1. Agreement to Employ; No Conflicts  Upon the terms and subject to the conditions of this Agreement, the Company hereby  agrees to employ Executive, and Executive hereby accepts such employment by the Company.   Executive represents and warrants that (a) Executive is entering into this Agreement voluntarily,  and that Executive’s employment hereunder and compliance with the terms and conditions hereof  will not conflict with or result in the breach by Executive of any agreement to which Executive is  a party or by which Executive may be bound; (b) Executive has not violated, and in connection  with Executive’s employment with the Company will not violate, any non-competition, non- solicitation or other similar covenant or agreement by which Executive is or may be bound; and  (c) in connection with Executive’s employment by the Company, Executive will not use any  confidential or proprietary information Executive may have obtained in connection with  Executive’s services to any prior employer.    2. Term; Position and Responsibilities   (a) Term.  Unless Executive’s employment shall sooner terminate pursuant to Section  7, the Company shall employ Executive for a term commencing on the Commencement Date and  ending on the third anniversary thereof (the “Initial Term”).  Effective upon the expiration of the  Initial Term and of each Additional Term (as defined below), unless Executive’s employment shall  sooner terminate pursuant to Section 7, Executive’s employment hereunder shall be deemed to be  automatically extended, upon the same terms and conditions, for an additional period of one year  (each, an “Additional Term”), in each such case, commencing upon the expiration of the Initial  Term or the then current Additional Term, as the case may be, unless, at least 60 days prior to the  expiration of the Initial Term or such Additional Term, as the case may be, either party hereto shall  have notified the other party thereto in writing that such extension shall not take effect.  The period  during which Executive is employed pursuant to this Agreement shall be referred to as the  “Employment Period”.  





 






#9936593 v5 \027606 \0401 2  (b) Position and Responsibilities.  During the Employment Period, Executive shall  serve as the Chief Financial Officer of the Company, reporting to the Chief Executive Officer of  the Company (the “CEO”).  Executive shall have such duties and responsibilities as are  customarily assigned to individuals serving in such position, and such other duties consistent with  Executive’s position as the CEO specifies from time to time.  Executive shall devote all of  Executive’s skill, knowledge and business time to the conscientious performance of such duties  and responsibilities, except for vacation time (as set forth in Section 6(b)), absence for sickness or  similar disability, and time spent performing services for any charitable, religious or community  organizations, so long as such services do not materially interfere with the performance of  Executive’s duties hereunder.  3. Base Salary  As compensation for the services to be performed by Executive during the Employment  Period, the Company shall pay Executive an initial base salary at an annualized rate of $400,000,  payable in accordance with the Company’s standard payroll practices.  The amount of the Base  Salary (as defined below) will be reviewed by the Board of Directors of the Company (the  “Board”) annually during the Employment Period, which may increase (but not decrease)  Executive’s Base Salary in its sole discretion at that time.  The annual base salary payable to  Executive under this Section 3 shall hereinafter be referred to as the “Base Salary”.  4. Incentive Compensation  (a) Annual Cash Bonus.  Except as otherwise expressly set forth in Section  7(f)(i)(B)(II) below, for each full calendar year of the Company that ends during the Employment  Period, Executive shall be eligible to participate in the annual bonus plan established and approved  by the Board (or applicable committee thereof) (the “Bonus Plan”) on the terms and conditions set  forth therein, with a target annual bonus opportunity of 60% of Base Salary.  (b) Equity Compensation.    (i) Subject to approval by the Board (or applicable committee thereof) and  Executive’s continued employment through the grant date, the Company will grant to Executive  200,000 Restricted Stock Units (as defined in the Company’s 2020 Incentive Plan, as amended  from time to time (the “Plan”)).  Such Restricted Stock Units shall (i) be issued in accordance with  the Plan, (ii) be evidenced by and subject to an award agreement entered into by Executive and the  Company, and (iii) vest as to (A) 25,000 Restricted Stock Units on January 3, 2022 (or, if earlier,  upon a Change in Control (as defined in the Plan), (B) 75,000 Restricted Stock Units on January  2, 2023 (or, if earlier, upon a Change in Control), and (C) 100,000 Restricted Stock Units on  January 1, 2024 (or, if earlier, upon a Change in Control), in each case, subject to Executive’s  continued employment through the applicable vesting date.  (ii) Subject to approval by the Board (or applicable committee thereof), the  Company will fully accelerate the vesting of the option granted under the Option Award  Agreement, dated June 30, 2020, by and between Executive and Eos Energy Storage LLC, a  Delaware limited liability company and an indirect wholly-owned subsidiary of the Company  





 






#9936593 v5 \027606 \0401 3  (“Eos”), as modified by that certain Option Substitution Agreement, dated as of November 13,  2020, by and among the Company, Eos, Executive, and the other parties thereto.  5. Employee Benefits  During the Employment Period, Executive (and, to the extent eligible, Executive’s  dependents and beneficiaries) shall be entitled to participate in any defined contribution plan, any  insurance program and any medical and other health benefit plan, in each case, sponsored by the  Company for its employees on terms and conditions set forth in such programs and plans (as  amended from time to time).    6. Expenses; Vacation  (a) Business Travel, Lodging, etc.  The Company shall reimburse Executive for  reasonable business, travel, lodging, meal and other reasonable expenses incurred by Executive in  connection with Executive’s performance of services hereunder in accordance with the Company’s  expense policy applicable to its senior level executives as in effect from time to time.  (b) Vacation.  During the Employment Period, Executive shall be entitled to three  weeks of paid personal time off per calendar year, which shall accrue at the rate of one work week  for each three complete months worked, in accordance with the Company’s paid personal time off  policy applicable to its employees as in effect from time to time.  7. Termination of Employment  (a) Termination Due to Death or Disability.  During the Employment Period,  Executive’s employment shall automatically terminate in the event of Executive’s death, and may  be terminated by the Company due to Executive’s Disability (as defined below).  For the purposes  of this Agreement, “Disability” shall mean a physical or mental disability that prevents the  performance by Executive of Executive’s essential duties under this Agreement for a continuous  period of 180 days or longer, or for 360 days or more in any 24-month period; provided, that, the  Company will comply with all obligations to provide reasonable accommodation of any disability  of Executive consistent with applicable law.  (b) Termination by the Company.  During the Employment Period, the Company may  terminate Executive’s employment with the Company with or without Cause.  For purposes of this  Agreement, “Cause” shall mean (i) any failure by Executive to perform Executive’s material  duties hereunder (other than any such breach or failure due to Executive’s physical or mental  illness or legally protected leave of absence); (ii) any failure by Executive to cooperate, if  reasonably requested by the Company, with any investigation or inquiry into Executive’s or the  Company’s business practices, whether internal or external, including, but not limited to,  Executive’s refusal to be deposed or to provide truthful testimony at any trial or inquiry that has  caused or is reasonably expected to result in material injury to the Company or any of its affiliates;  (iii) Executive engaging in fraud, willful misconduct, gross negligence or dishonesty that has  caused or is reasonably expected to result in material injury to the Company or any of its affiliates;  (iv) any breach by Executive of any fiduciary duty owed to the Company or any of its affiliates  that has caused or is reasonably expected to result in material injury to the Company or any of its  affiliates; (v) Executive’s conviction of, or entering a plea of guilty or nolo contendere to, a crime  





 






#9936593 v5 \027606 \0401 4  that constitutes a felony; or (vi) any material breach by Executive of any of Executive’s obligations  hereunder or under any other written agreement or covenant with the Company or any of its  affiliates that has caused or is reasonably expected to result in material injury to the Company or  any of its affiliates; provided, that, for each of subparts (i), (ii), (iv), and (vi) above, the Company  will provide Executive with (x) written notice specifying such alleged failure or breach and (y) 60  days to cure.    (c) Termination by Executive.  During the Employment Period, Executive may  terminate Executive’s employment with the Company with or without Good Reason.  For purposes  of this Agreement, “Good Reason” shall mean a termination by Executive of Executive’s  employment hereunder if (i) any of the following events occur without Executive’s consent, (ii)  within 90 days after Executive learns of the occurrence of such event, Executive notifies the  Company in writing that such event has occurred describing such event in reasonable detail and  demanding cure, and (iii) such event is not cured within 30 days after Executive so notifies the  Company: (A) a material diminution in Executive’s authority, duties or responsibilities that  Executive has on the date hereof, (B) a material adverse change in the reporting structure  applicable to Executive, (C) a material reduction in the rate of Base Salary or the target bonus  opportunity, other than in connection with an across the board reduction of the base salaries or  target bonus opportunities, respectively, of senior executives of the Company generally, (D) the  Company’s requirement that Executive relocate his primary place of employment to a location that  is more than 50 miles from Edison, New Jersey, (E) the Company's failure to obtain an agreement  from any successor to the Company to assume and agree to perform this Agreement in the same  manner and to the same extent that the Company would be required to perform if no succession  had taken place, except where such assumption occurs by operation of law, or (F) any material  breach by the Company of any of its material obligations hereunder.  (d) Notice of Termination.  Any termination of Executive’s employment by the  Company pursuant to Section 7(a) (other than in the event of Executive’s death) or Section 7(b)  or by Executive pursuant to Section 7(c) shall be communicated by a written Notice of Termination  addressed to the other party to this Agreement.  A “Notice of Termination” shall mean a notice  stating that Executive’s employment with the Company has been or will be terminated.  (e) Date of Termination.  As used in this Agreement, the term “Date of Termination”  shall mean (i) if Executive’s employment is terminated by Executive’s death, the date of  Executive’s death; (ii) if Executive’s employment is terminated by the Company pursuant to  Section 7(a) due to Executive’s Disability, 30 days after the date on which the Notice of  Termination is given; provided, that, if Executive shall have returned to the performance of  Executive’s duties on a full-time basis during such 30-day period, such Notice of Termination shall  be of no force or effect; (iii) if Executive’s employment is terminated by the Company for Cause  or by Executive for Good Reason, the date any applicable cure period expires (and, if there is no  applicable cure period, the date specified in the Notice of Termination); provided, that if a party is  entitled to cure the nature of such termination and so cures prior to the expiration of the applicable  cure period, the Notice of Termination provided to such curing party shall be of no force or effect;  and (iv) if Executive’s employment is terminated for any other reason, the date specified in the  Notice of Termination (which shall be 60 days after the date of such notice) and, if no such notice  is given, 60 days after the date of termination of employment; provided, that, if notice of less than  60 days is provided, the Company will provide Executive with full pay and benefits in lieu of  





 






#9936593 v5 \027606 \0401 5  notice for an amount of time equal to (A) such 60-day period, less (B) the actual number of days’  notice provided to Executive.  (f) Payments Upon Certain Terminations.  (i) Termination Without Cause or for Good Reason.  If (A) the Company shall  terminate Executive’s employment without Cause (including by providing notice of non-extension  per Section 2(a)) or (B) Executive shall terminate Executive’s employment for Good Reason, in  each case, during the Employment Period, the Company shall pay or provide to Executive:  (A) any accrued and unpaid Base Salary and vacation earned through  the Date of Termination (including any pay in lieu of notice), which shall be paid on the tenth day  after the Date of Termination (or, if such day is not a business day, the next business day after such  day); plus  (B) as liquidated damages in respect of claims based on provisions of  this Agreement and provided that Executive executes and delivers (and does not revoke) a general  release of all claims in the form attached as Exhibit A hereto within 60 days following the Date of  Termination:  (I) eighteen months’ Base Salary which shall be paid in periodic  installments on the Company’s regular payroll dates, beginning with the next payroll date  immediately following the expiration of the 60th day following the Date of Termination; plus  (II) if the applicable performance targets have been achieved in  accordance with the Bonus Plan for the year of termination (as determined by the Board (or  applicable committee thereof) following the end of such year), a prorated bonus under the Bonus  Plan for the year of termination in an amount equal to (A) the bonus Executive would have  otherwise received under the Bonus Plan for the year of termination, multiplied by (B) a fraction,  the numerator of which is the number of days Executive was employed by the Company during  such calendar year and the denominator of which is 365, payable in accordance with the Bonus  Plan; plus  (III) full vesting of all equity awards, including, without  limitation, the Restricted Stock Units granted pursuant to Section 4(b) above, in each case, to the  extent not yet vested (collectively, Section 7(f)(i)(B)(I) through (III), the “Severance”).  (ii) Termination for Any Other Reason.  If Executive’s employment is  terminated for any reason other than those specified in Section 7(f)(i) during the Employment  Period, the Company shall pay Executive on the tenth day after the Date of Termination (or, if  such day is not a business day, the next business day after such day), any accrued and unpaid Base  Salary and vacation earned through the Date of Termination.  (iii) Effect of Termination on Other Plans and Programs.  In the event that  Executive’s employment with the Company is terminated for any reason, Executive shall be  entitled to receive all amounts payable and benefits accrued under any otherwise applicable plan,  policy, program or practice of the Company in which Executive was a participant immediately  prior to the Date of Termination in accordance with the terms thereof; provided, that, if Executive’s  





 






#9936593 v5 \027606 \0401 6  employment is terminated without Cause or for Good Reason, Executive shall not be entitled to  receive any payments or benefits under any such plan, policy, program or practice providing any  severance or incentive compensation and the provisions of this Section 7 shall supersede the  provisions of any such plan, policy, program or practice.  (g) Resignation Upon Termination.  Effective as of the date of Executive’s termination  of employment with the Company, Executive shall resign, in writing, from all positions then held  by Executive with the Company and its affiliates unless otherwise requested by the Company and  agreed to by Executive.  (h) Cessation of Professional Activity.  Upon delivery of a Notice of Termination by  any party or a notice pursuant to Section 2(a), the Company may relieve Executive of Executive’s  responsibilities described in Section 2(b) and require Executive to immediately cease all  professional activity on behalf of the Company, in any such case, without such suspension or  cessation constituting a termination by the Company without Cause or providing Executive with  grounds to terminate Executive’s employment for Good Reason.  8. Restrictive Covenants  (a) Unauthorized Disclosure.  During the Employment Period and following any  termination thereof, without the prior written consent of a duly authorized representative of the  Company except to the extent required by an order of a court having competent jurisdiction or  under subpoena from an appropriate government agency, in which event, Executive shall use  Executive’s best efforts to consult with the Company prior to responding to any such order or  subpoena, and except as authorized in performance of Executive’s duties hereunder, Executive  shall not use or disclose any confidential or proprietary trade secrets, customer lists, drawings,  designs, marketing plans, management organization information (including, but not limited to,  data and other information relating to the Company or any subsidiary thereof (the “Company  Group”), or to the members of the boards of directors of the Company Group, or to the  management of the Company Group), operating policies or manuals, business plans, financial  records, or other financial, commercial, business or technical information (i) relating to the  Company Group or (ii) that the Company Group may receive belonging to customers or others  who do business with the Company Group (collectively, “Confidential Information”) to any third  Person (defined below) unless such Confidential Information has been previously disclosed to the  public generally or is in the public domain (in each case, other than by reason of Executive’s breach  of this Section 8(a)).  (b) Non-Competition.  During the period beginning on the date hereof and ending  twelve months after the termination of Executive’s employment with the Company (the  “Restriction Period”), Executive shall not, directly or indirectly, own any interest in, operate, join,  control or participate as a partner, shareholder, member, director, manager, officer, or agent of,  enter into the employment of, act as a consultant to, or perform any services for any entity that is  in competition with the Business (as defined below) of the Company Group in any jurisdiction in  which the Company Group is engaged at the time of Executive’s termination of employment.  For  purposes of this Agreement, “Business” means the development and manufacture of energy  storage products and solutions, including, without limitation, grid-scale energy storage, DC battery  





 






#9936593 v5 \027606 \0401 7  systems, applications in commercial and industrial, micro grid, telecom, military, renewables, and  residential markets, and the provision of services related thereto.  (c) Non-Solicitation of Employees.  During the Restriction Period, Executive shall not,  directly or indirectly, for Executive’s own account or for the account of any other natural person,  partnership, limited liability company, association, corporation, company, trust, business trust,  governmental authority or other entity (each, a “Person”) in any jurisdiction in which the Company  has commenced or has documented plans, as of the termination of Executive’s employment with  the Company, to commence operations during the Employment Period, (i) solicit for employment,  employ or otherwise interfere with the relationship of the Company Group with any natural person  throughout the world who is or was employed by or otherwise engaged to perform services for the  Company Group at any time (a) during the Employment Period, in the case of such prohibited  activity occurring during such time, or (b) during the twelve month period preceding such  prohibited activity, in the case of such prohibited activity occurring during the Restriction Period  but after the date of Executive’s termination of employment with the Company, in each case, other  than any such solicitation or employment on behalf of or at the request of the Company Group  during the Employment Period; or (ii) induce any employee of the Company Group to engage in  any activity which Executive is prohibited from engaging in under any of this Section 8 or to  terminate such employee’s employment with the Company.   (d) Non-Solicitation of Business Relationships.  During the Restriction Period,  Executive shall not, directly or indirectly, for Executive’s own account or for the account of any  other Person, in any jurisdiction in which the Company Group has commenced or has made plans  to commence operations, solicit, interfere with, or otherwise attempt to establish any business  relationship of a nature that is competitive with the Business or relationship of the Company Group  with any Person throughout the world which is or was a customer, client, distributor, supplier or  vendor of the Business of the Company Group (x) at any time during the Employment Period (in  the case of such prohibited activity occurring during such time) or (y) during the twelve month  period preceding such prohibited activity (in the case of such prohibited activity occurring during  the Restriction Period but after the date of Executive’s termination of employment with the  Company), other than any such activity on behalf of or at the request of the Company Group during  the Employment Period.   (e) Works for Hire.  (i) Generally.  Executive agrees that the Company shall own all right, title and  interest (including, but not limited to, patent rights, copyrights, trade secret rights and other rights  throughout the world) in any inventions, works of authorship, ideas or information made or  conceived or reduced to practice, in whole or in part, by Executive (either alone or with others)  during the Employment Period (collectively “Developments”); provided, however, that the  Company shall not own Developments for which no equipment, supplies, facility, trade secret  information or Confidential Information of the Company was used and which were developed  entirely on Executive’s time, and (A) which do not relate (I) to the business of the Company Group  or (II) to the actual or demonstrably anticipated research or development of the Company Group,  and (B) which do not result from any work performed by Executive for the Company.  





 






#9936593 v5 \027606 \0401 8  (ii) Disclosure; Assignment.  Subject to Section 8(e)(i), Executive will  promptly and fully disclose to the Company, or any persons designated by it, any and all  Developments made or conceived or reduced to practice or learned by Executive, either alone or  jointly with others during the Employment Period.  Executive hereby assigns all right, title and  interest in and to any and all of these Developments to the Company.  Executive shall further assist  the Company, at the Company’s expense, to further evidence, record and perfect such assignments,  and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or  assigned.  Executive hereby irrevocably designates and appoints the Company and its agents as  attorneys-in-fact to act for and on Executive’s behalf to execute and file any document and to do  all other lawfully permitted acts to further the purposes of the foregoing with the same legal force  and effect as if executed by Executive.    (iii) Copyright Act; Moral Rights.  In addition, and not in contravention of  Section 8(e)(i) or Section 8(e)(ii), Executive acknowledges that all original works of authorship  which are made by Executive (solely or jointly with others) within the scope of employment and  which are protectable by copyright are “works made for hire,” as that term is defined in the United  States Copyright Act (17 USC §101).  To the extent allowed by law, this Section 8(e) includes all  rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as  or referred to as “moral rights” (collectively, “Moral Rights”).  To the extent Executive retains  any such Moral Rights under applicable law, Executive hereby waives such Moral Rights and  consents to any action consistent with the terms of this Agreement with respect to such Moral  Rights, in each case, to the full extent of such applicable law.  Executive will confirm any such  waivers and consents from time to time as requested by the Company.  (iv) Authorized Disclosure.  Section 1833(b) of Title 18 of the United States  Code states “An individual shall not be held criminally or civilly liable under any Federal or State  trade secret law for the disclosure of a trade secret that (i) is made (a) in confidence to a Federal,  State, or local government official, either directly or indirectly, or to an attorney and (b) solely for  the purposes of reporting or investigating a suspended violation of law or (ii) is made in a  complaint or other document filed in a lawsuit or other proceeding, if such filing is made under  seal.” Accordingly, the Company and Executive have the right to disclose in confidence trade  secrets to Federal, State, and local government officials, or to an attorney, for the sole purpose of  reporting or investigating a suspected violation of law. The Company and Executive also have the  right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the  filing is made under seal and protected from public disclosure.  Nothing in this Agreement is  intended to conflict with Section 1833(b) of Title 18 of the United States Code or create liability  for disclosures of trade secrets that are expressly allowed by Section 1833(b) of Title 18 of the  United States Code.  (f) Mutual Nondisparagement.  Executive agrees that Executive shall neither, directly  or indirectly, engage in any conduct or make any statement (including through social media)  disparaging or criticizing in any way the Company Group, or any of their personnel, nor engage  in any other conduct or make any other statement that could be reasonably expected to impair the  goodwill of the Company Group, or the reputation of the Company Group, in each case, except to  the extent required by law, and then only after consultation with the Company to the extent  possible, or to enforce the terms of this Agreement.  The Company agrees that it shall not, and the  Company agrees that is shall instruct its senior executives and officers to not, directly or indirectly,  





 






#9936593 v5 \027606 \0401 9  engage in any conduct or make any statement (including through social media) disparaging or  criticizing in any way Executive, nor engage in any other conduct or make any other statement  that could be reasonably expected to impair the goodwill of Executive, or the reputation of  Executive, in each case, (i) except to the extent required by law, and then only after consultation  with Executive to the extent possible, (ii) to enforce the terms of this Agreement, or (iii) from  discussing Executive in connection with normal performance evaluations.  (g) Return of Documents.  In the event of the termination of Executive’s employment,  Executive shall promptly deliver to the Company (i) all property of the Company Group then in  Executive’s possession; and (ii) all documents and data of any nature and in whatever medium of  the Company Group, and Executive shall not take with Executive any such property, documents  or data or any reproduction thereof, or any documents containing or pertaining to any Confidential  Information.  (h) Confidentiality of Agreement; Governmental Agency Exception.  The parties to  this Agreement agree not to disclose its terms to any Person, other than their attorneys, accountants,  financial advisors or, in Executive’s case, members of Executive’s immediate family or, in the  Company’s case, for any reasonable purpose that is reasonably related to its business operations;  provided, that this Section 8(h) shall not be construed to prohibit any disclosure required by law  or in any proceeding to enforce the terms and conditions of this Agreement.  Notwithstanding  anything to the contrary contained in this Agreement, this Agreement does not limit Executive’s  ability to communicate with any government agency or otherwise participate in any investigation  or proceeding that may be conducted by any government agency, including providing documents  or other information, without notice to the Company or its affiliates.  This Agreement does not  limit Executive’s right to receive an award for information provided to any government agencies.  9. Certain Acknowledgments  Executive acknowledges and agrees that Executive will have a prominent role in the  development of the goodwill of the Company Group, and has and will establish and develop  relations and contacts with the principal business relationships of the Company Group in the  United States of America and the rest of the world, all of which constitute valuable goodwill of,  and could be used by Executive to compete unfairly with, the Company Group and that (i) in the  course of Executive’s employment with the Company, Executive will obtain confidential and  proprietary information and trade secrets concerning the business and operations of the Company  Group in the United States of America and the rest of the world that could be used to compete  unfairly with the Company Group; (ii) the covenants and restrictions contained in Section 8 are  intended to protect the legitimate interests of the Company Group in their respective goodwill,  trade secrets and other confidential and proprietary information; and (iii) Executive desires to be  bound by such covenants and restrictions.  10. Entire Agreement  This Agreement constitutes the entire agreement between the Company and Executive with  respect to the subject matter hereof, and supersedes all undertakings and agreements, whether oral  or in writing, previously entered into by the Company and Executive with respect thereto,  including, without limitation, that certain Offer Letter, dated June 23, 2020, by and between  





 






#9936593 v5 \027606 \0401 10  Executive and Eos (the “Original Agreement”).  All prior correspondence and proposals  (including, but not limited to, summaries of proposed terms and the Original Agreement) and all  prior offer letters, promises, representations, understandings, arrangements and agreements  relating to such subject matter (including, but not limited to, those made to or with Executive by  any other person) are merged herein and superseded hereby.  11. General Provisions  (a) Binding Effect; Assignment.  This Agreement shall be binding on and inure to the  benefit of the Company and its respective successors and permitted assigns.  This Agreement shall  also be binding on and inure to the benefit of Executive and Executive’s heirs, executors,  administrators and legal representatives.  This Agreement shall not be assignable by any party  hereto without the prior written consent of the other parties hereto, except as provided pursuant to  this Section 11(a).  The Company may affect such an assignment without prior written approval  of Executive upon the transfer of all or substantially all of its business and/or assets (by whatever  means).  (b) Governing Law; Waiver of Jury Trial.    (i) Governing Law; Consent to Jurisdiction.  This Agreement shall be governed  in all respects, including as to interpretation, substantive effect and enforceability, by the internal  laws of the State of New Jersey, without regard to conflicts of laws provisions thereof that would  require application to the laws of another jurisdiction other than those that mandatorily apply.   Each party hereby irrevocably submits to the jurisdiction of the courts of the State of New Jersey  and the federal courts of the United States of America located in the District of New Jersey solely  in respect of the interpretation and enforcement of the provisions of this Agreement and in respect  of the transactions contemplated hereby.  Each party hereby waives and agrees not to assert, as a  defense in any action, suit or proceeding for the interpretation and enforcement hereof, or in respect  of any such transaction, that such action, suit or proceeding may not be brought or is not  maintainable in such courts or that the venue thereof may not be appropriate or that this Agreement  may not be enforced in or by such courts.  Each party hereby consents to and grants any such court  jurisdiction over the person of such parties and over the subject matter of any such dispute and  agree that the mailing of process or other papers in connection with any such action or proceeding  in the manner provided in Section 11(f) or in such other manner as may be permitted by law, shall  be valid and sufficient service thereof.  (ii) Waiver of Jury Trial.  Each party acknowledges and agrees that any  controversy which may arise under this Agreement is likely to involve complicated and difficult  issues, and therefore each party hereby irrevocably and unconditionally waives any right such  party may have to a trial by jury in respect of any litigation directly or indirectly arising out of or  relating to this Agreement, or the breach, termination or validity of this Agreement, or the  transactions contemplated by this Agreement.  Each party certifies and acknowledges that (A) no  representative, agent or attorney of any other party has represented, expressly or otherwise, that  such other party would not, in the event of litigation, seek to enforce the foregoing waiver; (B)  each such party understands and has considered the implications of this waiver; and (C) each such  party makes this waiver voluntarily.    





 






#9936593 v5 \027606 \0401 11  (c) Taxes.  All amounts payable and benefits provided hereunder shall be subject to  any and all applicable taxes, as required by applicable Federal, state, local and foreign laws and  regulations.  (d) Amendments; Waiver.   No provision of this Agreement may be modified, waived  or discharged unless such modification, waiver or discharge is approved by a Person authorized  by the Company and is agreed to in writing by Executive and, in the case of any such modification,  waiver or discharge affecting the rights or obligations of the Company, is approved by a Person  authorized thereby.  No waiver by any party hereto at any time of any breach by any other party  hereto of, or compliance with, any condition or provision of this Agreement to be performed by  such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the  same or at any prior or subsequent time.  No waiver of any provision of this Agreement shall be  implied from any course of dealing between or among the parties hereto or from any failure by  any party hereto to assert its rights hereunder on any occasion or series of occasions.  (e) Legal Advice; Severability; Blue Pencil.  Executive acknowledges that Executive  has been advised to seek independent legal counsel for advice regarding the effect of the provisions  of this Agreement, and has either obtained such advice of independent legal counsel, or has  voluntarily and without compulsion elected to enter into and be bound by the terms of this  Agreement without such advice of independent legal counsel.  In the event that any one or more  of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any  respect, the validity, legality and enforceability of the remaining provisions contained herein shall  not be affected thereby.  Executive and the Company agree that the covenants contained in Section  8 are reasonable covenants under the circumstances, and further agree that if, in the opinion of any  court of competent jurisdiction such covenants are not reasonable in any respect, such court shall  have the right, power and authority to excise or modify such provision or provisions of these  covenants as to the court shall appear not reasonable and to enforce the remainder of these  covenants as so amended.  (f) Notices.  Any notice or other communication required or permitted to be delivered  under this Agreement shall be (A) in writing; (B) delivered personally, by facsimile, by courier  service or by certified or registered mail, first class postage prepaid and return receipt requested;  (C) deemed to have been received on the date of delivery or, if so mailed, on the third business  day after the mailing thereof; and (D) if so mailed or delivered by courier service, addressed as  follows (or to such other address as the party entitled to notice shall hereafter designate in  accordance with the terms hereof):  (I) If to the Company:    Eos Energy Enterprises, Inc.  3920 Park Avenue  Edison, NJ 08820  Attn: Russell Stidolph, Chairman  Email:  rstidolph@altenergyllc.com     With a copy (which shall not constitute notice) to:    





 






#9936593 v5 \027606 \0401 12    Morrison Cohen LLP    909 Third Avenue    New York, NY 10022    Attn: David P. LaGalia, Esq.     Anthony Saur, Esq.     Alan M. Levine, Esq.    Fax: (212) 735-8708    (II) If to Executive, at Executive’s residential address as  currently on file with the Company.  (g) Survival.  The Company and Executive hereby agree that certain provisions of this  Agreement, including, but not limited to, Sections 8, 9, 10 and 11, shall survive the expiration of  the Employment Period in accordance with their terms.  (h) Further Assurances.  Each party hereto agrees with the other party hereto that it will  cooperate with such other party and will execute and deliver, or cause to be executed and delivered,  all such other instruments and documents, and will take such other actions, as such other party  may reasonably request from time to time, to effectuate the provisions and purpose of this  Agreement.  (i) Section 409A.    (i) The parties intend that any amounts payable hereunder comply with or are  exempt from Section 409A (“Section 409A”) of the Internal Revenue Code of 1986, as amended  (the “Code”) (including under Treasury Regulation §§ 1.409A-1(b)(4) (“short-term deferrals”) and  (b)(9) (“separation pay plans,” including the exceptions under subparagraph (iii) and subparagraph  (v)(D)) and other applicable provisions of Treasury Regulation §§ 1.409A-1 through A-6).  For  purposes of Section 409A, each of the payments that may be made under this Agreement shall be  deemed to be a separate payment for purposes of Section 409A.  This Agreement shall be  administered, interpreted and construed in a manner that does not result in the imposition of  additional taxes, penalties or interest under Section 409A.  The Company and Executive agree to  negotiate in good faith to make amendments to the Agreement, as the parties mutually agree are  necessary or desirable to avoid the imposition of taxes, penalties or interest under Section 409A.   Neither the Company nor Executive shall have the right to accelerate or defer the delivery of any  such payments or benefits except to the extent specifically permitted or required by Section 409A.   With respect to the time of payments of any amounts under the Agreement that are “deferred  compensation” subject to Section 409A, references in the Agreement to “termination of  employment” (and substantially similar phrases) shall mean “separation from service” within the  meaning of Section 409A.  For the avoidance of doubt, it is intended that any expense  reimbursement made to Executive hereunder shall be exempt from Section 409A.   Notwithstanding the foregoing, if any expense reimbursement made hereunder shall be determined  to be “deferred compensation” within the meaning of Section 409A, then (a) the amount of the  indemnification payment or expense reimbursement during one taxable year shall not affect the  amount of the expense reimbursement during any other taxable year, (b) the expense  reimbursement shall be made on or before the last day of Executive’s taxable year following the  





 






#9936593 v5 \027606 \0401 13  year in which the expense was incurred and (c) the right to expense reimbursement hereunder shall  not be subject to liquidation or exchange for another benefit.  (ii) In the event that Executive is a “specified employee” (as described in  Section 409A), and any payment or benefit payable pursuant to this Agreement constitutes  deferred compensation subject to the six-month delay requirement described in Section  409A(2)(b), then no such payment or benefit shall be made before six months after Executive’s  “separation from service” (as described in Section 409A) (or, if earlier, the date of the Executive’s  death). Any payment or benefit delayed by reason of the prior sentence shall be paid out or  provided in a single lump sum at the end of such required delay period in order to catch up to the  original payment schedule.  (iii) The parties hereto intend that the Severance payments up to two times the  dollar limit in effect under Section 401(a)(17) of the Code for the year in which Executive’s  “separation from service” (as described in Section 409A) occurs shall be exempt from Section  409A to the extent permitted under Treasury Regulation Section 1.409A-1(b)(9)(iii) (the “two- times/two-year” exemption).  In determining which installments of Severance are taken into  account in applying the two-times/two-year exemption, any other exemptions from Section 409A  (including, the short-term deferral exception, if applicable) shall be taken into account first and the  immediately following installments shall then be applied toward the two-times/two-year exception  (up to the applicable dollar limit).  (j) Section 280G.    (i) Notwithstanding anything to the contrary contained in this Agreement or  otherwise, to the extent that any payment, distribution or acceleration of vesting to or for the benefit  of Executive by the Company (within the meaning of Section 280G of the Code and the regulations  thereunder), whether paid or payable or distributed or distributable pursuant to the terms of this  Agreement or otherwise (the “Total Payments”), is or will be subject to the excise tax imposed  under Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced (but  not below zero) to the Safe Harbor Amount (as defined below) if and to the extent that a reduction  in the Total Payments would result in Executive retaining a larger amount, on an after-tax basis  (taking into account federal, state and local income and employment taxes and the Excise Tax),  than if Executive received the entire amount of such Total Payments in accordance with their  existing terms (taking into account federal, state, and local income and employment taxes and the  Excise Tax).  For purposes of this Agreement, the term “Safe Harbor Amount” means the largest  portion of the Total Payments that would result in no portion of the Total Payments being subject  to the Excise Tax. To effectuate the foregoing, the Company shall reduce or eliminate the Total  Payments by first reducing or eliminating the portion of the Total Payments which are payable in  cash and then by reducing or eliminating non-cash payments, in each case, starting with the  payments to be made farthest in time from the Determination (as defined below).  (ii) The determination of whether the Total Payments shall be reduced as  provided in Section 11(j)(i) and the amount of such reduction shall be made at the Company’s  expense by an accounting firm selected by Company from among the 10 largest accounting firms  in the United States or by qualified independent tax counsel (the “Determining Party”); provided,  that Executive shall be given advance notice of the Determining Party selected by the Company,  





 






#9936593 v5 \027606 \0401 14  and shall have the opportunity to reject the selection, within two business days of being notified  of the selection, on the basis of that Determining Party’s having a conflict of interest or other  reasonable basis, in which case the Company shall select an alternative auditing firm among the  10 largest accounting firms in the United States or alternative independent qualified tax counsel,  which shall become the Determining Party.  Such Determining Party shall provide its  determination (the “Determination”), together with detailed supporting calculations and  documentation to the Company and Executive, within 10 business days of the termination of  Executive’s employment or at such other time mutually agreed by the Company and Executive.  If  the Determining Party determines that no Excise Tax is payable by Executive with respect to the  Total Payments, it shall furnish Executive with an opinion reasonably acceptable to Executive that  no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such  Determination shall be binding, final and conclusive upon the Company and Executive.  If the  Determining Party determines that an Excise Tax would be payable, the Company shall have the  right to accept the Determination as to the extent of the reduction, if any, pursuant to Section  11(j)(i), or to have such Determination reviewed by another accounting firm selected by the  Company, at the Company’s expense.  If the two accounting firms do not agree, a third accounting  firm shall be jointly chosen by Executive and the Company, in which case the determination of  such third accounting firm shall be binding, final and conclusive upon the Company and Executive.  (iii) If, notwithstanding any reduction described in this Section 11(j)(iii), the  Internal Revenue Service (“IRS”) determines that Executive is liable for the Excise Tax as a result  of the receipt of any of the Total Payments or otherwise, then Executive shall be obligated to pay  back to the Company, within 30 calendar days after a final IRS determination or in the event that  Executive challenges the final IRS determination, a final judicial determination, a portion of the  Total Payments equal to the “Repayment Amount”. The “Repayment Amount” with respect to the  payment of benefits shall be the smallest such amount, if any, as shall be required to be paid to the  Company so that Executive’s net after-tax proceeds with respect to the Total Payments (after  taking into account the payment of the Excise Tax and all other applicable taxes imposed on the  Payment) shall be maximized.  The Repayment Amount shall be zero if a Repayment Amount of  more than zero would not result in Executive’s net after-tax proceeds with respect to the Total  Payments being maximized.  If the Excise Tax is not eliminated pursuant to this Section 11(j)(iii),  Executive shall pay the Excise Tax.  (iv) Notwithstanding any other provision of this Section 11(j), if (i) there is a  reduction in the Total Payments as described in this Section 11(j), (ii) the IRS later determines that  Executive is liable for the Excise Tax, the payment of which would result in the maximization of  Executive’s net after-tax proceeds (calculated as if Executive’s benefits had not previously been  reduced), and (iii) Executive pays the Excise Tax, then the Company shall pay to Executive those  payments or benefits which were reduced pursuant to this Section 11(j) as soon as administratively  possible after Executive pays the Excise Tax (but not later than March 15 following the calendar  year of the IRS determination) so that Executive’s net after-tax proceeds with respect to the Total  Payments are maximized.  (v) If, following a reduction of the Total Payments pursuant to Section 11(j)(i),  the Determining Party or a court of competent jurisdiction determines that the Total Payments  were reduced to a greater extent than required under Section 11(j), then the Company shall as soon  as administratively possible (but not later than by March 15 following the calendar year of such  





 






#9936593 v5 \027606 \0401 15  determination) pay the amount of such excess reduction to or for the benefit of Executive, together  with interest at the applicable federal rate (as defined in Section 7872(f)(2)(A) of the Code), from  the date the amount would have otherwise been paid to Executive until the payment date.  (vi) To the extent requested by Executive, the Company shall cooperate with  Executive in good faith in valuing, and the Determining Party shall take into account the value of,  services provided or to be provided by Executive (including, without limitation, Executive’s  agreeing to refrain from performing services pursuant to a covenant not to compete or similar  covenant, before, on or after the date of a change in ownership or control of the Company (within  the meaning of Q&A-2(b) of the final regulations under Section 280G of the Code), such that  payments in respect of such services may be considered reasonable compensation within the  meaning of Q&A-9 and Q&A-40 to Q&A-44 of the final regulations under Section 280G of the  Code and/or exempt from the definition of the term “parachute payment” within the meaning of  Q&A-2(a) of the final regulations under Section 280G of the Code in accordance with Q&A-5(a)  of the final regulations under Section 280G of the Code.  (k) Counterparts.  This Agreement may be executed in counterparts, each of which  shall be deemed an original and all of which together shall constitute one and the same instrument.   The parties hereto agree to accept a signed facsimile copy or “PDF” of this Agreement as a fully  binding original.  (l) Headings.  The section and other headings contained in this Agreement are for the  convenience of the parties only and are not intended to be a part hereof or to affect the meaning or  interpretation hereof.  -- Signature page follows --  





 






   [Signature Page to Kurada Employment Agreement]  IN WITNESS WHEREOF, the Company has duly executed this Agreement by their  authorized representatives, and Executive has hereunto set Executive’s hand, in each case effective  as of the Commencement Date.  EOS ENERGY ENTERPRISES, INC.      By:__________________________________  Name: Russell Stidolph  Title: Chairman    EXECUTIVE       _____________________________________  Sagar Kurada  





 






  #9936593 v5 \027606 \0401  Exhibit A    Form of Release Agreement    This release agreement (this “Release Agreement”) is dated as of [______], 202[_] and is  entered into by Eos Energy Enterprises, Inc. (the “Company”) and Sagar Kurada (“you” or “your”)  in connection with the termination of your employment with the Company.  1. General Release  (a) You, on behalf of yourself and your family, agents, representatives, heirs,  executors, trustees, administrators, attorneys, successors and assigns (the “Releasors”), hereby  irrevocably and unconditionally release, settle, cancel, acquit, discharge and acknowledge to be  fully satisfied, and covenant not to sue the Company and each of its respective past and/or present  parents, subsidiaries, affiliates, successors and assigns, and each of their respective predecessors,  and past and/or present directors, managers, officers, employees, agents or other representatives,  and employee benefit plans of the Company or its affiliates, including, but not limited to, trustees  and administrators of these plans, in each case, in their individual and/or representative capacities  (collectively, the “Releasees”) from any and all claims, contractual or otherwise, demands, costs,  rights, causes of action, charges, debts, liens, promises, obligations, complaints, losses, damages  and all liability of whatever kind and nature, whether known or unknown, and hereby waive any  and all rights that he, she or it may have, from the beginning of time up to and including the time  of signing this Release Agreement, or that otherwise may exist or may arise in respect of your  employment or separation from employment with the Company, or is in any way connected with  or related to any applicable compensatory or benefit plan, program, policy or arrangement,  including, but not limited to, any claims arising under any United States federal, state or local laws  or any applicable laws of any other country, including, but not limited to, any and all claims under  Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, as amended,  the Age Discrimination in Employment Act of 1967, as amended, the Older Workers Benefit  Protection Act of 1990, the Equal Pay Act, the Americans with Disabilities Act of 1990, as  amended, the Family and Medical Leave Act of 1993, the Employee Retirement Income Security  Act of 1974, as amended, and any and all other United States federal, state or local regulations,  ordinances or public policies, any common law or equity claims and any applicable laws of any  other country, or claims under any policy, agreement, understanding or promise, written or oral,  formal or informal, between the Company and any of its affiliates and yourself, now or hereafter  recognized, including claims for wrongful discharge, slander and defamation, as well as all claims  for counsel fees and costs; provided, that such released claims shall not (i) include any claims to  enforce your rights under, or with respect to, this Release Agreement or the severance payments  and benefits to be provided under Section 7(f)(i) of your Employment Agreement, dated as of  March 25, 2021, by and between you and the Company (the “Employment Agreement”), (ii)  include any claims that may arise after the date on which you or the Company signs this Release  Agreement, (iii) include any claims that cannot be waived as a matter of law, (iv) include any  claims for vested employee benefits, (v) include any right to exercise options or other equity  awarded under the Company’s 2012 Equity Incentive Plan, as amended from time to time, or the  Company’s 2020 Incentive Plan, as amended from time to time, or (v) be considered a waiver of  or otherwise limit your rights in your capacity as an officer of the Company to indemnification,  exculpation, or liability or advancement of expenses under the Company’s governing documents  





 






#9936593 v5 \027606 \0401  or benefits under any directors or officers insurance policy maintained by the Company (the  foregoing sub-clauses (i) through (iv) shall collectively be referred to as the “Retained Claims”).  (b) The Releasors agree not to bring any action, suit or proceeding whatsoever  (including the initiation of governmental proceedings or investigations of any type) against any of  the Releasees hereto for any matter or circumstance concerning which the Releasors have released  the Releasees under this Release Agreement.  Further, the Releasors agree not to encourage any  other person or suggest to any other person that he, she or it institute any legal action against the  Releasees.  Nothing in this Release Agreement limits your ability to file a charge or complaint  with the Equal Employment Opportunity Commission, the National Labor Relations Board, the  Occupational Safety and Health Administration, the Securities and Exchange Commission or any  other federal, state or local governmental agency or commission or self-regulatory organization  (the “Government Agencies”).  You further understand that this Release Agreement does not limit  your ability to communicate with the Government Agencies or otherwise participate in any  investigation or proceeding that may be conducted by any Government Agency, including  providing documents or other information, without notice to the Company.  This Release  Agreement does not limit your right to receive an award for information provided to any  Government Agencies.  2. Consideration.  If you timely execute, deliver and do not revoke this Release  Agreement, (a) the Company shall comply with the applicable provisions of Section 7(f)(i) of your  Employment Agreement in accordance with the provisions thereof, and (b) you will retain all rights  in connection with the Retained Claims.  3. Legal Advice, Reliance.  You represent and acknowledge that (a) you have been  given adequate time (at least twenty-one (21) days) to consider this Release Agreement (which,  by signing this Release Agreement prior to the expiration of such period, you have expressly  agreed to waive) and have been advised to discuss all aspects of this Release Agreement with your  private attorney; (b) you have carefully read and fully understand all the provisions of this Release  Agreement; (c) you have voluntarily entered into this Release Agreement, without duress or  coercion; and (d) you have not heretofore assigned or transferred or purported to assign or transfer,  to any person or entity, any of the claims described in Section 1(a) hereof, any portion thereof or  any interest therein.  You understand that if you request additional time to review the terms of this  Release Agreement, a reasonable extension of time will be granted.  4. Miscellaneous.  (a) No Violation of Law.  You agree and acknowledge that this Release  Agreement is not and shall not be construed to be an admission by the Company of any violation  of any United States federal, state or local statue, ordinance or regulation, or any applicable laws  of any other country, or of any duty owed by the Company to you.  (b) Third Party Beneficiaries.  All Releasees under this Release Agreement who  are not signatories to this Release Agreement shall be deemed to be third party beneficiaries of  this Release Agreement to the same extent as if they were signatories hereto.  





 






#9936593 v5 \027606 \0401  (c) Governing Law; Severability.  This Release Agreement will be governed  by the laws of the State of New Jersey, without regard to its conflict of laws rules.  In the event  that any one or more of the provisions of this Release Agreement is held to be invalid, illegal or  unenforceable, the validity, legality and enforceability of the remaining provisions will not in any  way be affected or impaired thereby.  (d) Revocation.  You may revoke this Release Agreement within seven (7) days  after the date on which you sign this Release Agreement.  You understand that this Release  Agreement is not binding or enforceable until such seven (7) day period has expired.  Any such  revocation must be made in a signed letter executed by you and received by the Company at the  following address no later than 5:00 p.m., New York time, on the seventh day after you have  executed this Release Agreement: 3920 Park Avenue, Edison, NJ 08820, Attn: Chairman.  You  understand that if you revoke this Release Agreement, you will not be entitled to any severance  payments or benefits (to the extent not already paid or provided) under Section 7(f)(i) of your  Employment Agreement.  (e) Counterparts.  This Release Agreement may be executed in one or more  counterparts, each of which shall be deemed an original, but all of which together shall constitute  one and the same instrument.  -- Signature page follows --       





 






  #9936593 v5 \027606 \0401  Very truly yours,    Eos Energy Enterprises, Inc.      By:               Name:   Title:        ACCEPTED AND AGREED:      ________________________      Sagar Kurada    Dated:___________________