Exhibit 10.1


 


AMENDMENT NO. 3 TO STANDBY
EQUITY PURCHASE AGREEMENT


 


THIS AMENDMENT
NO. 3 (the “Amendment”), dated as of December 29, 2022, to the Standby Equity Purchase Agreement dated as of April 28,
2022, as amended by Amendment No. 1 thereto dated as of June 13, 2022 and Amendment No 2. thereto dated as of November 14, 2022 (as amended,
the “SEPA”), 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 $75,000,000 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, when aggregated with the issuance
of any Common Shares pursuant to any Convertible Note (whether such issuances of Common Shares are effected solely pursuant to the terms
of such Convertible Note or pursuant to the terms of the SEPA), would exceed 19.99% of the outstanding Common Shares as of the date of
Amendment No. 3 hereto (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) to sales of Common Shares at a price that equals or exceeds $1.08 per share (which represents the lower of (i) the Nasdaq Official
Closing Price on the Trading Day immediately preceding the date of Amendment No. 3 hereto; or (ii) the average Nasdaq Official Closing
Price for the five Trading Days immediately preceding the date of Amendment No. 3 hereto); provided that in the case of clause (b) that
the average price of all applicable sales of Common Shares hereunder after the date of Amendment No. 3 hereto equals or exceeds $1.08
per share.


 


For purposes of this Section 1.14,
“Convertible Note” shall mean any promissory note or similar instrument convertible into, exchangeable or exercisable
for Common Shares that is issued by the Company to the Investor as a pre-advance loan pursuant to Section 2.05 hereof, that, pursuant
to its terms, provides for any amount outstanding thereunder to be offset by an issuance of Common Shares to the Investor under the terms
of this Agreement.


 


3. 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. 3]