ex1025-amendedandrestate






EXECUTION VERSION  SECOND AMENDMENT TO COMPANY NAME AFFIX AND TRADEMARK LICENSE  AGREEMENT   This SECOND AMENDMENT TO COMPANY NAME AFFIX AND TRADEMARK  LICENSE AGREEMENT (this “Second Amendment”), is dated as of October 27, 2021, by and  between Siemens Aktiengesellschaft, with registered seats in Berlin and Munich, Federal Republic  of Germany (“Siemens”) and Fluence Energy, LLC, a limited liability company duly organized and  validly existing under the laws of the State of Delaware (“Licensee”).  Siemens and the Licensee  may herein collectively be referred to as the “Parties”  WHEREAS, Siemens and Licensee are parties to that certain Company Name Affix and  Trademark License Agreement, dated on or about July 9, 2017, which was amended by that certain  Amendment to Company Name Affix and Trademark License Agreement, dated on or about June  9th, 2021 (collectively, the “Trademark License Agreement”);   WHEREAS, Siemens Industry, Inc., a Delaware corporation and affiliate of Siemens (“SII”),  Licensee, and certain other parties are entering into a series of transaction in connection with the  formation of Fluence Energy, Inc., a Delaware corporation (“Issuer”) to serve as the vehicle through  which the public will own indirect interests in Licensee through an initial public offering (the  “IPO”);  WHEREAS, in connection with the IPO, the Parties desire to further amend the Trademark  License Agreement as set forth in this Second Amendment, with such Second Amendment to take  effect as of the Effective Date (as defined in Section 3 hereof), without any further action necessary  on the part of the Parties; and  WHEREAS, this Second Amendment is duly made by the Parties pursuant to Section 17.2 of  the Trademark License Agreement.  NOW, THEREFORE, in consideration of the foregoing and of the covenants and agreements  set forth in this Second Amendment, and subject to the terms and conditions set forth in this Second  Amendment, the Parties agree as follows:  1. Capitalized Terms.  Capitalized terms used and not otherwise defined in this Second Amendment shall have the respective meanings ascribed to them in the Trademark License  Agreement.  2. Amendments.  The Parties agree to amend the Trademark License Agreement as follows:  (a) Definitions. Article 1 of the Trademark Agreement is hereby amended to add the following definitions:  “AES” shall mean AES Grid Stability, LLC, a Delaware limited liability company.  Exhibit 10.25 





 






2    “Affiliate” shall mean, at any time, and with respect to any Person or group of  Persons, a Person that at such time directly or indirectly through one or more  intermediaries, Controls, is Controlled by, or is under common Control with such  Person or group of Persons.  No Person shall be considered an Affiliate of another  Person or under the Control of such other Person so long as (i) it is owned less than  50% by such other Person, (ii) such other Person has no capacity to elect or appoint  the majority of the board of directors or similar governing body of the subject Person,  (iii) such other Person does not consolidate the subject Person in its financial  reporting and (iv) there is no other management or services agreement pursuant to  which such other Person exerts control over the subject Person.  With respect to  Siemens, none of Gamesa Corporación Technológica S.A., Siemens Healthineers AG  nor any of their respective Subsidiaries shall be considered an Affiliate of Siemens.    “Control” shall mean, with respect to the relationship between two or more Persons,  the possession, directly or indirectly, of the power to direct or cause the direction of  the management and policies of a Person, whether through ownership of voting  securities, as trustee or executor, by contract or otherwise.  The terms “Controlled” or  “under common Control with” have correlative meanings     “Person” shall mean any natural person, corporation, partnership, joint venture, trust,  estate, unincorporated association, limited liability company or any other entity  (whether or not having separate legal personality), and shall include any successor  (by merger or otherwise) of such entity    “Shares” shall mean (i) the Class A Common Stock of the Issuer, calculated on a  fully diluted basis and assuming that all options, warrants and any other rights to  purchase shares of Class A Common Stock of the Issuer have been exercised in full,  including, for sake of clarity, the Underlying Class A Shares plus (ii) any other equity  securities now or hereafter issued by the Issuer, together with any options thereon and  any other shares of stock or other equity securities issued or issuable with respect  thereto (whether by way of a stock dividend, stock split or in exchange for or in  replacement or upon conversion of such shares or otherwise in connection with a  combination of shares, recapitalization, merger, consolidation or other corporate  reorganization); provided, however, that in no event shall the Shares include the Class  B Common Stock of the Issuer.    “Third Party” shall mean any Person other than SII and its Affiliates or AES and its  Affiliates.     “Underlying Class A Shares” shall mean all shares of Class A Common Stock of the  Issuer issuable upon redemption of Common Units of the Licensee, assuming all such  Common Units are redeemed for Class A Common Stock of the Issuer on a one for  one basis    





 






3    “Voting Power” shall mean the total voting power of all Shares entitled to vote  generally in the election of directors (for clarity, on a basis that assumes that all  Common Units of Licensee have been redeemed for shares of Class A Common  Stock of the Issuer on a one for one basis and that there are no shares of Class B  Common Stock of the Issuer outstanding).    (b) Termination.  Section 12.2 of the Trademark License Agreement is hereby  amended and restated in its entirety as follows:    “12.2 During the period commencing on the Effective Date and ending  on January 1, 2024 (the “Lock-up Period”), Siemens may terminate this  Agreement only in the event of one of the following (each, a  “Termination Event”), in each case with immediate effect by giving  written notice thereof to Licensee: (i) for cause as set forth in 12.3 below,  (ii) if at any time, the then outstanding Voting Power represented by the  Shares held collectively by AES and its Affiliates is ten (10) percentage  points or more than the then outstanding Voting Power represented by the  Shares held collectively by SII and its Affiliates at such time (for example,  AES holding Voting Power equal to 30% (or more than 30%) and Siemens  holding Voting Power equal to 20%), (iii) if at any time, SII and AES,  together with their respectively Affiliates, collectively no longer hold  Shares representing more than fifty percent (50%) of the then outstanding  Voting Power, (iv) if at any time, any Third Party together with its  Affiliates, collectively holds Shares representing a higher percentage of  the then outstanding Voting Power as compared to the then outstanding  Voting Power represented by the Shares held by either (A) SII and its  Affiliates, or (B) AES and its Affiliates, at such time.  After the conclusion  of the Lock-up Period, provided this Agreement is not earlier terminated  pursuant to a Termination Event, Siemens is entitled to terminate the  rights and licenses granted under this Agreement upon 90 day written  notice to Licensee without having to present to Licensee the reasons for  such termination.”    3. Effectiveness of this Second Amendment.  Each of the Parties, by its signature  below, does hereby give its written consent to the amendment of the Trademark License Agreement  in accordance with this Second Amendment.  This Second Amendment will become effective as of  the day on which the Class A Common Stock of the Issuer is issued to the underwriters in the  Issuer’s IPO (the “Effective Date”); provided, that if the Effective Date does not occur on or prior to  December 31, 2021, this Second Amendment shall be deemed terminated as of such date and of no  force or effect without further notice or action by the Parties, and the Trademark License Agreement  shall remain in full force and effect without any amendment thereto.     4. No Other Amendments.  Except as expressly modified by this Second Amendment,  the Trademark License Agreement (as heretofore modified) shall remain unmodified and in full  force and effect.  





 






4      5. Counterparts.  This Second Amendment may be executed in two or more  counterparts, each of which shall be deemed an original but all of which shall constitute one (1) and  the same Second Amendment. A signed copy of this Second Amendment delivered by facsimile or  email will be deemed to have the same legal effect as delivery of an original signed copy of such  Second Amendment.    6. Execution and Delivery.  A .pdf, or other reproduction of this Second Amendment  may be executed by one or more parties hereto and delivered by such Party by email or any similar  electronic transmission device pursuant to which the signature of or on behalf of such Party can be  seen. Such execution and delivery shall be considered valid, binding and effective for all purposes.  At the request of any Party hereto, all parties hereto agree to execute and deliver an original of this  Second Amendment as well as any .pdf or other reproduction hereof.    7. Governing Law.  This Second Amendment is exclusively governed by, and shall be  exclusively construed in accordance with, the substantive laws of Germany with the exclusion of the  Vienna Convention on the International Sale of Goods and without regard to any conflict of law  rules that require the application of the laws of any other jurisdiction. This includes, without  limitation, the legal concepts and terms contained in this Second Amendment, the English translation  of which may not be identical with the original German terms in their respective legal understanding.  Any possible current of future obligations between Parties which fall under the EC Regulations No.  864/2007 on the Law Applicable to Non-Contractual Obligation (“Rome II”) are governed by  German Law, the United Nations Convention on Contracts for the International Sale of Goods and  any conflict of law rules that require the application of the laws of any other jurisdiction being  excluded.    [Signature page follows] 





 






Signature Page – Second Amendment to Trademark License Agreement  IN WITNESS WHEREOF, the Parties have executed this Second Amendment as of the day  and year first above written.  Siemens Aktiengesellschaft  By:       Name:  Dr. Volkmar Bonn   Title:    Authorized Officer  By:  Name:  Carsten Johne   Title:    Senior IP Counsel  Fluence Energy, LLC  By:  Name:   Title:  By: Fluence Energy, Inc.  Its:  Managing Member  





 






Signature Page – Second Amendment to Trademark License Agreement  IN WITNESS WHEREOF, the Parties have executed this Second Amendment as of the day  and year first above written.  Siemens Aktiengesellschaft  By:   Name:     Title:      By:   Name:     Title:      Fluence Energy, LLC   By: Fluence Energy, Inc., as managing member,  By:   Name:  Francis A. Fuselier  Title:    General Counsel and Secretary