S-8

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-8

REGISTRATION STATEMENT

UNDER THE SECURITIES ACT OF 1933

EOS ENERGY ENTERPRISES, INC.

(Exact name of registrant as specified in its charter)

Delaware	3690	84-4290188
(State or other jurisdiction of incorporation)	(Primary Standard Industrial Classification Code Number)	(IRS Employer Identification No.)

3920 Park Avenue

Edison, New Jersey 08820

(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code: (732) 225-8400

Amended and Restated 2020 Incentive Plan

(Full title of the plans)

Joe Mastrangelo

Chief Executive Officer

Eos Energy Enterprises, Inc.

3920 Park Avenue

Edison, New Jersey 08820

Tel: (732) 27225-8400

(Name, address and telephone number, including area code, of agent for service)

Copies to

Michael Kaplan

Adam Kaminsky

Davis Polk & Wardwell LLP

450 Lexington Avenue

New York, New York 10017

Tel: (212) 450-4000

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer a smaller reporting company or an emerging growth company. See the definitions of the “large accelerated filer,” “accelerated filer,” “non-accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☒	Smaller reporting company	☒
		Emerging growth company	☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

REGISTRATION OF ADDITIONAL SHARES

PURSUANT TO GENERAL INSTRUCTION E

Pursuant to General Instruction E of Form S-8, Eos Energy Enterprises, Inc. (“Registrant”) is filing this Registration Statement on Form S-8 with the U.S. Securities and Exchange Commission (the “Commission”) to register 19,000,000 additional shares of the Registrant’s Common Stock for issuance under the Eos Energy Enterprises, Inc. Amended and Restated 2020 Incentive Plan (“2020 Plan”). This Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statements on Form S-8 filed with the Commission on June 4, 2021 (Registration No. 333-256766), June 17, 2022 (Registration No. 333-265708) and June 23, 2023 (Registration No. 333-272848). In accordance with the instructional note to Part I of Form S-8 as promulgated by the Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

We hereby incorporate by reference into this registration statement the following documents previously filed with the Commission:

(a)The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Commission on March 4, 2024, as amended on March 7, 2024 (File No. 001-39291) (the “Annual Report”);

(b)All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the Annual Report (other than the portions of these documents not deemed to be filed); and

(c)The description of the Common Stock contained in Exhibit 4.5 to the Registrant’s Annual Report, including any amendment or report filed for the purpose of updating such description.

All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

Item 5. Interests of Named Experts and Counsel.

Not applicable.

Item 8. Exhibits.

		Incorporated by Reference
Exhibit Number	Description of Document	Form	File No.	Exhibit	Filing Date	Filed Herewith
4.1	Third Amended and Restated Certificate of Incorporation	10-K	001-39291	3.1	2/28/2023
4.2	Second Amended and Restated Bylaws	8-K	001-39291	3.2	5/19/2022
5.1	Opinion of Davis Polk & Wardwell LLP					X
23.1	Consent of Independent Registered Public Accounting Firm					X
23.2	Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)					X
24.1	Power of Attorney (see signature page)					X
99.1	Amended and Restated 2020 Incentive Plan	S-8	333-256766	99.1	6/4/2021
99.2	First Amendment to the Amended and Restated 2020 Incentive Plan	S-8	333-265708	99.2	6/17/2022
99.3	Second Amendment to the Amended and Restated 2020 Incentive Plan	S-8	333-272848	99.3	6/23/2023
99.4	Third Amendment to the Amended and Restated 2020 Incentive Plan	10-Q	001-39291	10.6	5/14/2024
107	Calculation of Filing Fee Table					X

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Edison, State of New Jersey, on June 26, 2024.

EOS ENERGY ENTERPRISES, INC.
By:	/s/ Joe Mastrangelo
Name:	Joe Mastrangelo
Title:	Chief Executive Officer and Director (Principal Executive Officer)

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Joe Mastrangelo, Nathan Kroeker and Michael Silberman, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents, or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1933, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

Name	Position	Date
/s/ Joe Mastrangelo	Chief Executive Officer and Director	June 26, 2024
Joe Mastrangelo	(Principal Executive Officer)
/s/ Nathan Kroeker	Chief Financial Officer	June 26, 2024
Nathan Kroeker	(Principal Financial Officer)
/s/ Sumeet Puri	Chief Accounting Officer	June 26, 2024
Sumeet Puri	(Principal Accounting Officer)
/s/ Jeffrey Bornstein	Director	June 26, 2024
Jeffrey Bornstein
/s/ Alex Dimitrief	Director	June 26, 2024
Alex Dimitrief
/s/ Claude Demby	Director	June 26, 2024
Claude Demby
/s/ Jeffrey McNeil	Director	June 26, 2024
Jeffrey McNeil
	Director	June 26, 2024
Nicholas Robinson
/s/ Russell Stidolph	Director	June 26, 2024
Russell Stidolph
/s/ Marian “Mimi” Walters	Director	June 26, 2024
Marian “Mimi” Walters

EX-FILING FEES

EXHIBIT 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

Eos Energy Enterprises, Inc.

(Exact Name of Registrant as Specified in its Charter)

Newly Registered Securities

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit(2)	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common stock, par value $0.0001 per share	Rule 457(c) and Rule 457(h)	19,000,000	$0.7895	$15,000,500.00	0.0001476	$2,214.07
Total Offering Amounts					$15,000,500.00		$2,214.07
Total Fee Offsets							$—
Net Fee Due							$2,214.07

(1) Pursuant to Rule 416 of the Securities Act of 1933, this Registration Statement includes an indeterminate number of additional shares of the Registrant’s Common Stock, par value $0.0001 per share (“Common Stock”), which may be necessary to adjust the number of shares reserved for issuance pursuant to the Eos Energy Enterprises, Inc. Amended and Restated 2020 Incentive Plan as a result of a stock split, stock dividend or similar adjustment of the outstanding common stock of the Registrant.

(2) Computed solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) under the Securities Act on the basis of the average of the high and low prices per share of Common Stock on the Nasdaq Capital Market on June 18, 2024, which date is within five business days prior to filing this Registration Statement.

EX-5.1

		DRAFT
	Davis Polk & Wardwell llp 450 Lexington Avenue New York, NY 10017 davispolk.com

EXHIBIT 5

OPINION OF DAVIS POLK & WARDWELL LLP

June 26, 2024

Eos Energy Enterprises, Inc.

3920 Park Avenue

Edison, New Jersey 08820

Ladies and Gentlemen:

We have acted as special counsel to Eos Energy Enterprises, Inc., a Delaware corporation (the “Company”), and are delivering this opinion in connection with the Company’s Registration Statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, for the registration of 19,000,000 shares (the “Shares”) of the Company’s Common Stock, par value $0.0001 per share (“Common Stock”), issuable pursuant to the Eos Energy Enterprises, Inc. Amended and Restated 2020 Incentive Plan (the “Plan”).

We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.

In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vi) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.

On the basis of the foregoing, we are of the opinion that the Shares have been duly authorized and, when and to the extent issued pursuant to the Plan, upon receipt by the Company of the consideration for the Shares specified therein, will be validly issued, fully paid and non-assessable.

We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.

Very truly yours,

/s/ Davis Polk & Wardwell LLP

EX-23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 4, 2024 relating to the financial statements of Eos Energy Enterprises, Inc. (the “Company”), appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2023.

/s/ Deloitte & Touche LLP

New York, NY

June 26, 2024