Exhibit 10.28


 


FLUENCE ENERGY, LLC


 


PROMISSORY NOTE


 


	August 11, 2021	$25,000,000


 


Effective as of the
date set forth above (the “Effective Date”) and pursuant to all of the terms and conditions hereof, Fluence
Energy, LLC, a Delaware limited liability company, for value received, promises to pay to the order of Siemens Industry, Inc., its successors
and assigns (the “Holder”), the sum of $25,000,000, plus accrued interest thereon from the Effective Date of
this Promissory Note (this “Note”) until paid in full at an annual interest rate, calculated on the basis of
a 360 day year over the actual number of days elapsed, equal to the lesser of (i) the Interest Rate (as defined below) and (ii) the highest
rate permitted by applicable law. Unless earlier prepaid as provided in Section 2 hereof, the outstanding principal hereof and all accrued
but unpaid interest thereon (the “Debt”) shall be due and payable on the earlier of (i) on or after December
31st, 2021 (the “Repayment Date”) or (ii) upon the occurrence of an Event of Default.


 


1.              Definitions.
As used in this Note, the following terms, unless the context otherwise requires, have the following meanings:


 


1.1           “Business
Day” means any day other than (i) a Saturday or a Sunday or (ii) a day
on which banks are not required to be open or are authorized to close in New York, New York.


 


1.2           “Company”
shall mean Fluence Energy, LLC, a Delaware limited liability company, and shall include any corporation, partnership, limited
liability company or other entity that shall succeed to or assume the obligations of the Company under this Note.


 


 1.3           “Interest Rate” shall mean 2.86 %.




 


1.4           “Mandatory Prepayment
Event” shall mean any of: (i) the closing of any private placement of equity securities for the purpose of
raising additional cash for the Company’s business needs, but specifically excluding any issuance of equity or equity
derivatives by the Company or any of its subsidiaries in connection with compensatory programs for employees, directors and other
service providers, (ii) the Company’s settlement of the first underwritten public offering of its securities under the
Securities Act; (iii) the settlement of the first underwritten public offering of securities of Fluence Energy, Inc., a
Delaware corporation, under the Securities Act, or (iv) the closing of any merger, consolidation, reorganization,
recapitalization, capital share exchange, share sale, asset sale or other similar transaction or business combination (or series of
related transactions or related business combinations), in each such case, between the Company (or any direct or indirect parent
entity, subsidiary, affiliate or corporate successors thereof) and any entity that is a “special purpose acquisition
company” (or any of its subsidiaries or affiliates) or “blank check” company (or any of its subsidiaries or
affiliates), following which the surviving or resulting corporation or its successor has a class of equity securities listed on
either the New York Stock Exchange or the Nasdaq Stock Market.


 









     


     


    

 


1.5           “Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


2.              Mandatory Prepayment.
Notwithstanding anything contained herein to the contrary, the Debt shall automatically and without notice be due and payable within five
(5) Business Days following the date of the closing of a Mandatory Prepayment Event; provided that if the proceeds from any Mandatory
Prepayment Event (the “Proceeds”) are insufficient to repay all Debt in full, such Proceeds shall be paid ratably
against all outstanding Notes, and interest shall continue to accrue on the remaining outstanding principal and the remaining balance
shall be paid in full upon the consummation of the next Mandatory Prepayment Event.


 


3.              Interest
and Payments.


 


3.1            Accrued
and unpaid interest shall, at the end of each calendar month, be added to the outstanding principal balance.


 


3.2            Except
as otherwise specified herein, each payment or prepayment, if any, made under this Note shall be applied to pay late charges, accrued
and unpaid interest, principal, escrows (if any), and any other fees, costs and expenses which Company is obligated to pay under this
Note, in such order as Holder may elect from time to time in its sole discretion.


 


3.3            Payments
of interest on the outstanding accumulated principal balance shall be due and payable in arrears on the first day of each month commencing
on January 1, 2022.


 


3.4            All
payments on this Note are payable on or before 2:00 p.m. on the due date thereof, at the office of Holder specified above and shall
be credited on the date the funds become available lawful money of the United States. All sums payable to Holder which are due on a day
on which Holder is not open for business shall be paid on the next succeeding business day and such extended time shall be
included in the computation of interest.


 


3.5            Any
prepayment in whole or in part shall include accrued and unpaid interest to the date of prepayment and all other sums due and payable
hereunder.


 


3.6            From
and after the earlier of the Repayment Date, a Mandatory Prepayment Event, or the occurrence of an Event of Default hereunder,
irrespective of any declaration of maturity, all amounts remaining unpaid or thereafter accruing hereunder, shall, at Holder's
option, bear interest at a default rate of two percent (2%) per annum above the interest rate then in effect as set forth herein
(the "Default Rate"), or the highest permissible rate under applicable usury law, whichever is less. Such
default rate of interest shall be payable upon demand.


 


4.              Representations and Warranties.
The Company hereby represents and warrants to the Holder that:


 


4.1
           Organization, Good Standing and Qualification. The
Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware
and has all requisite power and authority to carry on its business as presently conducted. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its
business or properties.


 






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4.2          
Authorization. All action on the part of the Company, its officers, directors and equity holders necessary for the authorization of
this Agreement and the Notes, the performance of all obligations of the Company hereunder and thereunder at the Closing and the
sale, issuance and delivery of the Notes has been taken, except to the extent of any failure of authorization that would not
reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole. The Agreement and the
Notes, when executed and delivered, will be valid and binding obligations of the Company enforceable against the Company in
accordance with their terms, except as limited by (a) applicable bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors’ rights, (b) laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (c) applicable usury laws.


 


5.              Defaults
and Remedies.


 


5.1           Events of Default.
Upon the occurrence of an Event of Default (as defined below), the entire unpaid principal and accrued interest on the Note shall, without
presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, be immediately due and payable. The following
events shall be considered events of default (individually, an “Event of Default” and collectively, “Events
of Default”):


 


(a)         If the Company fails
to pay any of the principal, interest, or any other amounts payable under this Note when due and payable;


 


(b)        If the Company fails
to pay any of the principal, interest, or any other amounts payable under any other Note when due and payable;


 


(c)         If the Company fails
to pay any amount due to Holder under any other agreement pertaining to Company indebtedness or credit support provided by Holder;


 


(d)        any representation,
warranty, certification, or other information furnished by or on behalf of the Company was false or misleading in any material respect
when made;


 


(e)         If the Company files
any petition or action for relief under any bankruptcy, reorganization, insolvency or moratorium law or any other law for the relief of,
or relating to, debtors, now or hereafter in effect, or seeks the appointment of a custodian, receiver, trustee (or other similar official)
of the Company or all or any substantial portion of the Company’s assets, or makes any assignment for the benefit of creditors or
takes any action in furtherance of any of the foregoing, or fails to generally pay its debts as they become due; or


 


(f)
          If an involuntary petition is filed, or any proceeding or case is
commenced, against the Company (unless such proceeding or case is dismissed or discharged within 60 days of the filing or
commencement thereof) under any bankruptcy, reorganization, arrangement, insolvency, adjustment of debt, liquidation or moratorium
statute now or hereafter in effect, or a custodian, receiver, trustee, assignee for the benefit of creditors (or other similar
official) is applied or appointed for the Company or to take possession, custody or control of any property of the Company, or an
order for relief is entered against the Company in any of the foregoing..


 






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5.2           Remedies.
Upon the occurrence of an Event of Default, each Holder shall have then, or at any time thereafter, all of the rights and remedies afforded
creditors generally by the applicable federal laws or the laws of the State of Delaware at law, in equity or otherwise.


 


6.              Miscellaneous.


 


6.1          Waiver and Amendment.
Any provision of this Note may be amended, waived or modified only upon the written consent of the Company and Holder.


 


6.2           Restrictions on Transfer;
Assignment. The Holder may not transfer or assign all or any part of this Note without the approval of the Company, provided that
the holder may assign this note to any affiliate within majority-ownership by Siemens AG. This Note may only be transferred in compliance
with applicable state and federal laws. All rights and obligations of the Company and the Holder shall be binding upon and benefit the
successors, assigns, heirs and administrators of the parties.


 


6.3          Fees and Expenses.
All expenses incurred in connection with this Note, including attorneys’ fees, shall be paid by the parties incurring such expenses.
Costs of collection and enforcement (including reasonable attorneys fees) shall, however, be paid by the Company upon demand, and shall
be added to the principal balance hereof.


 


6.4           Pari Passu Notes.
The Holder acknowledges and agrees that the payment of all or any portion of the Debt shall be pari passu in right of payment and in all
other respects to the other Notes. In the event the Holder receives payments in excess of the Holder’s pro rata share of the Company’s
payments to the holders of all of the Notes, then the Holder shall hold in trust all such excess payments for the benefit of the holders
of the other Notes and shall pay such amounts held in trust to such other holders upon demand by such holders.


 


6.5           Governing Law.
This Note and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard to conflict of law principles that would result in the
application of any law other than the law of the State of Delaware. Each party hereto consents to exclusive jurisdiction and venue in
Delaware, if in state court, and in the United States District Court for Delaware, if in United States federal court, for any suit or
proceeding relating to, arising out of or arising under this Note; such courts shall have the sole and exclusive in personam, subject
matter and other jurisdiction in connection with such suit or proceeding and venue shall be appropriate for all purposes in such courts.


 


6.6           Prepayment.
The Debt may be prepaid, in whole or in part at any time, by the Company so long as accrued interest is paid first, and then outstanding
principal.


 


6.7           Lost
or Stolen Note. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Note and, in the case of any such loss, theft or destruction, upon receipt of an indemnity reasonably
satisfactory to the Company, or in the case of any such mutilation, upon surrender and cancellation of such Note, the Company, at
its expense, will make and deliver a new Note, of like tenor, in lieu of the lost, stolen, destroyed or mutilated Note.


 






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6.8           Notices. Any
notice required or permitted hereunder shall be given in writing and shall be conclusively deemed effectively given upon personal delivery
or delivery by courier, or on the first business day after transmission if sent by confirmed facsimile transmission or electronic mail
transmission, or five business days after deposit in the United States first class mail, by registered or certified mail, postage prepaid,
addressed as set forth below the Company’s or the Holder’s name, as applicable, on the signature page hereto, or at such
other address as the Company or the Holder may designate by 10 business days’ advance written notice to the other party hereto.


 


6.9           Severability.
If one or more provisions of this Note are held unenforceable under applicable law, such provision shall be excluded from this Note and
the balance of this Note shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.


 


6.10        Heading; References.
All headings used herein are used for convenience only and shall not be used to construe or interpret this Note. Except where otherwise
indicated, all references herein to Sections refer to Sections hereof.


 


6.11
        Entire Agreement. This instrument represents the entire agreement
between the parties hereto with respect to this Note and its terms and conditions.


 


6.12        
Counterparts. This Note may be executed in counterparts, all of which together will constitute one and the same agreement.
Delivery of an executed counterpart of a signature page of this Note by facsimile, portable document format (.pdf) or other
electronic transmission will be as effective as delivery of a manually executed counterpart hereof.


 


6.13        Waiver of Jury Trial. COMPANY AND HOLDER AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY SUIT, ACTION OR PROCEEDING, WHETHER
CLAIM OR COUNTERCLAIM, BROUGHT BY HOLDER OR COMPANY, ON OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. HOLDER AND COMPANY EACH HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND INTELLIGENTLY, AND WITH THE ADVICE OF THEIR RESPECTIVE COUNSEL, WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, COMPANY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN
ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. COMPANY ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT HOLDER WOULD NOT EXTEND
CREDIT TO COMPANY IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF THIS NOTE.


 






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6.14
        Electronic Execution of Certain Other Documents. The
words “execution,” “execute”, “signed,” “signature,” and words of like import
in or related to any document to be signed in connection with this Note and the transactions contemplated hereby (including without
limitation assignments, assumptions, amendments, waivers and consents) shall be deemed to include electronic signatures, the
electronic matching of assignment terms and contract formations on electronic platforms approved by the Holder, or the keeping of
records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.


 


[Remainder of Page Intentionally Left Blank]


 






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IN WITNESS WHEREOF, the Company has caused this
Promissory Note to be issued as of the Effective Date.


 


	Company:	FLUENCE ENERGY, LLC
	 	 
	 	By: 	/s/ Dennis Fehr
	 	Name:	 Dennis Fehr 
	 	Title:	Chief Financial Officer



 


	 	By:	/s/ Francis A. Fuselier
	 	Name:	Francis A. Fuselier
	 	Title:	General Counsel and Secretary


 


	 	Address:
	 	 
	 	Fluence Energy, LLC 
	 	4601 N. Fairfax Drive, Suite 600 Arlington, VA 22203 
	 	Attn: Chief Financial Officer 
	 	Email: dennis.fehr@fluenceenergy.com
	 	 
	 	With a copy to: 
	 	Attn: General Counsel 
	 	Email: frank.fuselier@fluenceenergy.com






 


 


	Holder:	SIEMENS INDUSTRY INC.
	 	 	 
	 	By:	/s/
    Ruth Gratzke
	 	Name:	Ruth Gratzke
	 	Title:	CEO, Siemens Industry Inc.
	 	 	 
	 	By:	/s/ Marsha Smith
	 	Name:	Marsha Smith
	 	Title:	CFO, Siemens Industry Inc.


 


	 	Address: 
	 	100 Technology Dr., Alpharetta GA 30005



 


[Signature Page to Promissory Note]