Exhibit 10.1


 


 


AMENDMENT NO. 2 TO STANDBY
EQUITY PURCHASE AGREEMENT


 


THIS AMENDMENT
NO. 2 (the “Amendment”), dated as of November 14, 2022, to the Standby Equity Purchase Agreement (the “SEPA”),
dated as of April 28, 2022 and as amended on June 13, 2022, by and between YA II PN, LTD., a Cayman Islands exempt limited partnership
(the “Investor”), and Eos Energy Enterprises, Inc., a company incorporated under the laws of the State of Delaware (the “Company”,
and together with the Investor, the “Parties”), is being executed at the direction of the Parties.


 


WHEREAS, Section 13.02 of the SEPA
permits the Parties to amend the SEPA through an instrument in writing signed by the Parties.


 


NOW, THEREFORE, in consideration
of the foregoing and the agreements, provisions and covenants herein contained, the Parties agree as follows:


 


1. The defined term “Commitment
Amount” in Section 1.14 of the SEPA is hereby deleted in its entirety and replaced with the following:


 


“Commitment Amount”
shall mean $125,000,000 of Common Shares, provided that, the Company shall not effect any sales under this Agreement and the Investor
shall not have the obligation to purchase Common Shares under this Agreement to the extent (but only to the extent) that after giving
effect to such purchase and sale the aggregate number of Common Shares issued under this Agreement would exceed 19.99% of the outstanding
Common Shares as of the date of this Agreement (the “Exchange Cap”); provided further that, the Exchange Cap
will not apply (a) if the Company’s stockholders have approved issuances in excess of the Exchange Cap in accordance with the rules
of the Principal Market or (b) the average price of all applicable sales of Common Shares hereunder (including the Commitment Fee Shares
in the number of shares sold for these purposes) equals or exceeds $2.15 per share (which represents the lower of (i) the Nasdaq Official
Closing Price on the Trading Day immediately preceding the date of this Agreement; or (ii) the average Nasdaq Official Closing Price for
the five Trading Days immediately preceding the date of this Agreement).


 


2. This Amendment supersedes all other prior oral
or written agreements between the Investor, the Company, their respective affiliates and persons acting on their behalf with respect to
the matters discussed herein. Except as specifically set forth in this Amendment, no other provision of SEPA shall be deemed amended or
modified and the SEPA shall otherwise remain in full force and effect. For the avoidance of doubt, the Company shall not be entitled to
any reduction or refund of any fees paid under the SEPA, pursuant to Section 13.04, or otherwise.


 


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The Parties hereto have caused this Amendment to be executed and delivered
as of the day and year first written above.


 


	 	COMPANY:
	 	Eos Energy Enterprises, Inc.
	 	 	 
	 	 	 
	 	By:	 /s/ Melissa Berube
	 	Name:	 Melissa Berube
	 	Title:	 General Counsel
	 	 	 
	 	 	 
	 	INVESTOR:
	 	YA II PN, LTD.
	 	By:	 Yorkville Advisors Global II, LLC 
	 	Its:	 General Partner
	 	 	 
	 	 	 
	 	By:	 /s/ Matt Beckman
	 	Name:	 Matt Beckman
	 	Title:	 Member



 


 


 


 


 


 


 


	
    [Signature Page to Amendment No. 2]