EXHIBIT 10.2
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (this "Agreement"), dated as of April 22, 2005,
is made by and among BEACON POWER CORPORATION, a Delaware corporation (the
"Company"), PERSEUS CAPITAL, L.L.C., a Delaware limited liability company
("Perseus Capital"), and PERSEUS 2000 EXPANSION FUND, L.L.C., a Delaware limited
liability company (the "Purchaser").
RECITALS
WHEREAS, on the terms and subject to the conditions set forth in this
Agreement, the Company desires to issue and sell to the Purchaser 1,666,667
shares of the Company's Common Stock (the "Initial Shares");
WHEREAS, on the terms and subject to the conditions set forth in this
Agreement, the Company desires to obtain from the Purchaser an option (the "Call
Option"), exercisable at the election of the Company, to issue and sell to the
Purchaser the number of shares of the Company's Common Stock determined in
accordance with Section 2.1(c) of this Agreement;
WHEREAS, in consideration of the Purchaser's agreement to acquire the
Initial Shares and to grant the Company the Call Option, the Company has agreed
to issue to the Purchaser on the date hereof a warrant to purchase certain
additional shares of the Company's Common Stock (the "Warrant");
WHEREAS, subject to the terms and conditions set forth in this Agreement,
the Purchaser desires to acquire the Initial Shares, grant to the Company the
Call Option, and acquire the Warrant;
WHEREAS, the Company has entered into an Arrangement Agreement of even date
herewith with NxtPhase T&D Corp., a Canadian corporation ("NxtPhase"), pursuant
to which the Company and NxtPhase will consummate a business combination (the
"NxtPhase Transaction");
WHEREAS, the Purchaser has committed to invest an additional $1.5 million
in NxtPhase in accordance with the term sheet ("Term Sheet") dated as of April
22, 2005 (the "NxtPhase Investment"); and
WHEREAS, the Purchaser and the Company have agreed that (i) at the option
of the Purchaser (the "NxtPhase Investment Option"), the portion of the NxtPhase
Investment that has not yet been invested as of the date the NxtPhase Investment
Option is exercised by the Purchaser (the "Remaining NxtPhase Investment") will
be made by the Company instead of by the Purchaser, (ii) if the Purchaser
exercises the NxtPhase Investment Option, the Purchaser will provide the Company
with sufficient funds to make such Remaining NxtPhase Investment on the terms
and subject to the conditions set forth herein, and (iii) any portion of the
NxtPhase Investment that has not been made on or prior to the consummation of
the NxtPhase Transaction will be invested in the Company by the Purchaser on the
terms and subject to the conditions set forth herein;
WHEREAS, Perseus Capital holds a warrant to acquire 1,333,333 shares of the
Company's Common Stock at an exercise price of $2.25 per share ("the "PC
Warrant"), and the PC Warrant expires by its terms on May 23, 2005;
WHEREAS, Perseus Capital desires to obtain an extension for two years on
the expiration date of the PC Warrant, and the Company is willing to grant such
extension in exchange for a payment of $100,000.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the parties agree as follows:
ARTICLE I
DEFINITIONS
For all purposes of this Agreement the following terms have the meanings
set forth in this Article I.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the Commonwealth of Massachusetts or in the District
of Columbia are authorized or required by law or executive order to close.
"Call Date" means the effective date of the Company's Notice of Call
delivered in accordance with Section 2.1 below.
"Charter" means the articles or certificate of incorporation or formation,
statute, constitution, joint venture or partnership agreement, limited liability
company agreement or articles or other organizational document of any Person
other than an individual, each as from time to time amended or modified.
"Closing" has the meaning specified in Section 2.2.
"Closing Date" has the meaning specified in Section 2.2.
"Common Stock" means the common stock of the Company, par value $0.01 per
share, and any securities into which such common stock may hereafter be
converted or reclassified.
"Company" has the meaning specified in the introduction to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Effective Price" means with respect to any issuance of Common Stock, the
price per share of Common Stock of such issuance; with respect to the issuance
of any security convertible into shares of Common Stock, the purchase price paid
for such convertible security divided by the number of shares of Common Stock
issuable upon the conversion of such convertible security; and with respect to
any option, warrant or other right to acquire shares of Common Stock, the
exercise price for one share of Common Stock thereunder.
"Maximum Amount" means the sum of $1,500,000, plus if the NxtPhase
Transaction is consummated, any portion of the NxtPhase Investment that has not
been made by the Purchaser or the Company as of the date of such consummation.
"Per Share Price" means, $0.84 per share, subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar
transactions involving the Common Stock that occur after the date of this
Agreement but prior to the applicable Closing Date.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, joint venture, unincorporated organization or other
entity and any government, governmental department or agency or political
subdivision thereof.
"Purchased Securities" means the Initial Shares, the Requested Shares (as
defined below), the Warrant, any Additional Shares and any Additional Warrant.
"Purchaser" has the meaning specified in introduction to this Agreement.
"Registration Rights Agreement" means that certain Registration Rights
Agreement of even date herewith by and between the Company and the Purchaser,
substantially in the form set forth on Exhibit A.
"Securities Act" means the United States Securities Act of 1933, as
amended.
ARTICLE II
SALE AND PURCHASE OF PURCHASED SECURITIES
SECTION 2.1. Investment Transactions.
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(a) Sale and Purchase of the Initial Shares. For value received, and on the
terms and subject to all of the conditions set forth herein, at the Initial
Closing, the Company shall issue and sell to the Purchaser, and the Purchaser
shall purchase, the Initial Shares at the Per Share Price, for a total
investment in the Company at the Initial Closing of $1,400,000.
(b) Extension of PC Warrant Term. In consideration of the payment of
$100,000 to the Company by Perseus Capital at the Initial Closing, the Company
agrees to extend the term of the PC Warrant so that it expires on May 23, 2007
rather than on May 23, 2005.
(c) Call Option. For value received, and on the terms and subject to all of
the conditions set forth herein, the Purchaser hereby irrevocably agrees to
purchase upon demand by the Company such number of shares of the Company's
Common Stock at the Per Share Price as the Company shall request in its sole
discretion (the "Requested Shares") in a Notice of Call delivered by the Company
to Perseus after the date hereof substantially in the form set forth on Exhibit
B hereto. In no event shall the Requested Shares in the aggregate exceed the
number of shares equal to the quotient obtained by dividing the Maximum Amount
by the Per Share Price. The Purchaser's obligations under this Section 2.1(c) to
purchase the Requested Shares shall expire upon September 30, 2005.
(d) NxtPhase Investment Option. The Purchaser shall have the option, but
not the obligation, to assign to the Company its right to make any Remaining
NxtPhase Investment (together with its rights under all investment documentation
pertaining to the Remaining NxtPhase Investment) and if the Purchaser exercises
the NxtPhase Investment Option, (i) the Company shall assume the Purchaser's
obligation to make any Remaining NxtPhase Investment, (ii) the Purchaser shall
make an investment in the Company's Common Stock on each date that the Company
is required to make an investment in NxtPhase as part of the Remaining NxtPhase
Investment, and (iii) in consideration of such investment, the Company shall
issue and deliver to the Purchaser additional shares of Common Stock equal to
the quotient obtained by dividing the amount of such investment by the Per Share
Price (the "Additional Shares"). Notwithstanding the foregoing, the Purchaser
shall not be entitled to exercise the NxtPhase Investment Option without the
consent of the Company unless the definitive investment documentation pertaining
to the NxtPhase Investment substantially reflects the terms set forth in the
Term Sheet and otherwise is no less favorable to the purchaser than the
investment documentation used in the most recent sale of Class A Preferred Stock
by NxtPhase, as previously provided to the Company. Upon exercise of the
NxtPhase Investment Option, the Company shall issue to the Purchaser an
additional warrant having substantially the same terms as the Warrant, except
that the initial number of shares of Common Stock issuable upon exercise of such
warrant shall equal the quotient obtained by dividing (i) 27.9491% of the
Remaining NxtPhase Investment by (ii) 120% of the Per Share Price (the
"Additional Warrant").
(e) Deliveries. At the Initial Closing, the Company shall deliver to the
Purchaser the following:
(i) the Warrant substantially in the form set forth on Exhibit C
hereto duly executed by the Company;
(ii) evidence that the Company and its Board of Directors have
authorized the amendment of the Company's Rights Agreement dated September
25, 2002 (as amended, the "Rights Agreement") so that the Purchaser will
not be considered an "Acquiring Person" (as such term is defined in the
Rights Agreement) by reason of the Purchaser and the Company entering into
the transactions contemplated hereby, including without limitation the
Company's issuance of the Purchased Securities and the Purchaser's
ownership of the Purchased Securities or any shares of Common Stock
issuable or issued upon exercise of the Warrant.
(f) Unwind. In the event that (i) the NxtPhase Transaction is terminated
for any reason or (ii) the NxtPhase Transaction is not consummated within fifty
weeks after the date the Company makes its initial Remaining NxtPhase
Investment, then within five Business days thereof, the Company shall transfer
to the Purchaser all shares of capital stock of NxtPhase purchased pursuant to
the Remaining NxtPhase Investment, and the Purchaser shall transfer to the
Company all Purchased Securities issued in consideration for investments made by
the Purchaser in the Company pursuant to subsection (d) of this Section 2.1 and
the Additional Warrant. If any shares of Common Stock have been issued upon
exercise of the Additional Warrant, such shares shall also be returned to the
Company in exchange for the repayment to the Purchaser of the exercise price
therefore. All such required transfers shall be made free and clear of any and
all liens and encumbrances. Each of the Company and the Purchaser agree not to
transfer, encumber or otherwise restrict any of the securities that may be
subject to a transfer in accordance with this Section 2.1(f) for so long as the
respective transfer obligations hereunder shall be in effect.
SECTION 2.2. Closings. Each closing of the purchase and sale of Purchased
Securities hereunder will take place remotely by means of mail, facsimile and
electronic mail (with originally executed documents to be exchanged immediately
thereafter). The closing (the "Initial Closing") of the purchase and sale of the
Initial Shares shall be held on May 13, 2005 or on such other date as may be
agreed to by the Purchaser and the Company (the "Initial Closing Date"). Each
closing (each, a "Call Closing") of the purchase and sale of Requested Shares
shall be held on a date specified in the applicable Notice of Call that is not
earlier than fifteen Business Days following the delivery by the Company of a
Notice of Call with respect to such Requested Shares (the "Call Closing Date").
Each closing (each, an "Additional Closing" and collectively with the Initial
Closing and each Call Closing, each a "Closing") of the purchase and sale of any
Additional Shares shall be held simultaneously with the closing of the
additional investment to be made by the Company in NxtPhase as part of the
Remaining NxtPhase Investment (each an "Additional Closing Date" and
collectively with the Initial Closing Date and each Call Closing Date, each a
"Closing Date"). At each Closing, (i) the Company will issue, sell and deliver
to the Purchaser the Purchased Securities to be issued at such Closing by
executing and delivering one or more stock certificates that in the aggregate
represent such Purchased Securities, and (ii) the Purchaser shall pay the
aggregate purchase price therefor by wire transfer of immediately available
funds to an account designated in writing by the Company at least two Business
Days prior to such Closing Date (the "Company Account"). In addition, at the
Initial Closing, the Company shall issue to Perseus Capital an amended PC
Warrant reflecting a two-year extension of the termination date thereunder and
Perseus Capital shall pay to the Company $100,000 by wire transfer of
immediately available funds in such amount to the Company Account and shall
deliver to the Company for cancellation the existing PC Warrant.
SECTION 2.3. Use of Proceeds. The proceeds from the sale of the Initial
Shares and any Requested Shares hereunder shall be used for capital
expenditures, acquisitions, working capital and other general corporate purposes
of the Company and its subsidiaries or otherwise as determined from time to time
by the Company's Board. The proceeds from the sale of any Additional Shares
shall be used only to fund the Company's obligations in connection with the
Remaining NxtPhase Investment.
SECTION 2.4. Certain Adjustments. In the event the Company issues or is
deemed under this Section 2.4 to have issued any shares of Common Stock on or
prior to a Closing Date at an Effective Price less than the Per Share Price, the
Per Share Price shall be reduced for purposes of each Closing held after such
issuance or deemed issuance to the lowest such Effective Price and the number of
Shares to be issued at each such Closing shall be increased so that the product
of the Per Share Price, as so adjusted, multiplied by the number of Shares
equals the aggregate purchase price paid at such Closing by the Purchaser. In
the event the Company issues or is deemed to have issued under this Section 2.4
any shares of Common Stock after a Closing and prior to the six-month
anniversary of such Closing at an Effective Price less than the Per Share Price,
then within two Business Days of such issuance or deemed issuance, the Company,
for no additional consideration, shall issue and deliver to the Purchaser an
additional number of shares of Common Stock equal to the difference between (a)
the number of shares of Common Stock that would have been issued to the
Purchaser at all Closings held after the date that is six months prior to the
date of such issuance or deemed issuance if the Per Share Price were equal to
the lowest such Effective Price minus (b) the number of shares of Common Stock
actually issued to the Purchaser at all such Closings. For purposes of this
Section 2.4, the Company shall be deemed to have issued shares of Common Stock
if it issues any securities convertible into Common Stock or any option, warrant
or other right to acquire Common Stock. This Section 2.4 shall not apply to, and
no adjustment shall be made by reason of, the issuance of (i) any shares of
Common Stock pursuant to the conversion of any security outstanding on the date
hereof, (ii) any shares of Common Stock issued pursuant to the exercise of any
option, warrant or other right to acquire Common Stock outstanding on the date
hereof, (iii) any securities issued pursuant to any employee benefit plan
approved by the Company's Board of Directors or its Compensation Committee, (iv)
any securities issued in connection with any merger or consolidation of the
Company with another Person or the purchase by the Company of all or
substantially all of the assets of any other Person, (v) any securities issued
pursuant to a stock split, stock dividend or recapitalization involving the
Company, (vi) shares of Common Stock issued to the Purchaser pursuant to this
Section 2.4 or (vii) securities issued in replacement of any securities issued
pursuant to the preceding subsections (i) - (vi).
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce Perseus Capital and the Purchaser to enter into this
Agreement and to induce the Purchaser to purchase the Purchased Securities, the
Company hereby represents and warrants, as of the date hereof and as each
Closing Date, that:
SECTION 3.1. Organization and Good Standing. The Company is duly organized,
validly existing and in good standing in its jurisdiction of organization and is
duly qualified and authorized to do business in all other jurisdictions in which
the nature of its business or property makes such qualification necessary. The
Company has the power to own its properties and to carry on its business as now
conducted and as proposed to be conducted.
SECTION 3.2. Authorization. The execution, delivery and performance by the
Company of this Agreement, the Registration Rights Agreement, and the issuance
and sale by the Company of the Purchased Securities hereunder: (a) are within
the Company's power and authority; (b) have been duly authorized by all
necessary corporate and other proceedings; (c) has been duly executed and
delivered by an authorized officer of the Company; and (d) do not and will not
result in the creation of any lien upon any of the Company's property or
conflict with or result in any breach of any provision of the Company's Charter,
or any law, regulation, order, judgment, writ, injunction, license, permit,
agreement or instrument to which the Company is subject.
SECTION 3.3. Enforceability. The execution and delivery by the Company of
this Agreement, the Registration Rights Agreement, and the issuance and sale by
the Company of the Purchased Securities hereunder, will result in legally
binding obligations of the Company, enforceable against it in accordance with
the respective terms and provisions hereof and thereof except (i) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of
general application affecting enforcement of creditors' rights generally, (ii)
as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies, and (iii) to the extent the
indemnification provisions contained in this Agreement and/or in the
Registration Rights Agreement may be limited by applicable federal or state
securities laws.
SECTION 3.4. SEC Reports. The Company has filed all reports required to be
filed by it under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the three years preceding the date hereof
(or such shorter period as the Company was required by law to file such reports)
(the foregoing reports, including the exhibits thereto, being collectively
referred to herein as the "SEC Reports") on a timely basis or has received a
valid extension of such time of filing and has filed any such SEC Reports prior
to the expiration of any such extension. As of their respective dates, the SEC
Reports complied in all material respects with the requirements of the
Securities Act and the Exchange Act and the rules and regulations of the U.S.
Securities Exchange Commission promulgated thereunder, and none of the SEC
Reports, when filed, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
ARTICLE IV
REPRESENTATIONS OF THE PURCHASER AND PERSEUS CAPITAL
SECTION 4.1. Investment Intent. The Purchaser hereby represents, warrants
and covenants to the Company that the Purchaser will acquire the Purchased
Securities to be purchased by the Purchaser hereunder for investment only for
the Purchaser's own account, not as a nominee or agent and not with a view to
the sale or distribution of any part thereof. The Purchaser hereby agrees that
it will not transfer the Purchased Securities or any securities received upon
exercise of the Warrant or the Additional Warrant in a manner that will violate
the Securities Act.
SECTION 4.2. Authorization. Each of Perseus Capital and the Purchaser
hereby represents and warrants to the Company that this Agreement has been
executed by a duly authorized Person on its behalf; its execution, delivery and
performance hereof have been duly authorized by all appropriate action and do
not and will not conflict with or result in any breach of any provision of any
law, regulation, order, judgment, writ, injunction, license, permit, agreement
or instrument to which it is subject. The Purchaser hereby further represents
and warrants that the execution and delivery of the Registration Rights
Agreement by the Purchaser has been effected by a duly authorized Person on the
Purchaser's behalf, the execution, delivery and performance thereof has been
duly authorized by all appropriate action on the Purchaser's behalf and will not
conflict with or result in any breach of any provision of any law, regulation,
order, judgment, writ, injunction, license, permit, agreement or instrument to
which the Purchaser is subject.
SECTION 4.3. Enforceability. Each of Perseus Capital and the Purchaser
hereby represents and warrants that the execution and delivery by it of this
Agreement and, in the case of the Purchaser, the Registration Rights Agreement,
will result in legally binding obligations of it enforceable against it in
accordance with the respective terms and provisions hereof and thereof except
(i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement of creditors' rights
generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies, and (iii) to the
extent the indemnification provisions contained in this Agreement and/or in the
Registration Rights Agreement may be limited by applicable federal or state
securities laws.
SECTION 4.4. Exemption. The Purchaser understands that the Purchased
Securities and any securities received upon exercise of the Warrant and the
Additional Warrant are not registered under the Securities Act on the grounds
that the sale provided for in this Agreement and the issuance of securities
hereunder is exempt from registration under the Securities Act pursuant to
section 4(2) thereof, and that the Company's reliance on such exemption is
predicated on the Purchaser's representations set forth herein.
SECTION 4.5. Experience. The Purchaser represents that it has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company, is familiar with the risks
associated with the business and operations of the Company, has such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of its investment, and has the ability to bear the economic
risks of its investment for an indefinite period of time, including the risk of
a complete loss of the Purchaser's investment in the Purchased Securities. The
Purchaser represents that it has had, during the course of the transaction and
prior to the purchase of the Purchased Securities, the opportunity to request
information from and ask questions of the Company and its officers, employees
and agents, concerning the Company, its assets, business and operations and to
receive information and answers to such requests and questions.
SECTION 4.6. Restricted Securities. The Purchaser understands that the
Purchased Securities and any securities received upon exercise of the Warrant
and the Additional Warrant are characterized as "restricted securities" under
the U.S. federal securities laws inasmuch as they are being acquired from the
Company in a transaction not involving a public offering and that under such
laws and applicable regulations the Purchased Securities and any securities
received upon exercise of the Warrant or the Additional Warrant may be resold
without registration under the Securities Act only in certain limited
circumstances. The Purchaser acknowledges that the Purchased Securities and any
securities received upon exercise of the Warrant or the Additional Warrant must
be held indefinitely unless subsequently registered under the Securities Act and
under applicable state securities laws or an exemption from such registration is
available. The Purchaser acknowledges that each certificate representing the
Purchased Securities shall bear a legend substantially in the following form:
"THE SECURITY REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH SHARES MAY
NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION IN EFFECT UNDER
SUCH ACT UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER EVIDENCE
REASONABLY ACCEPTABLE TO IT DEMONSTRATING THAT SUCH SALE OR TRANSFER IS EXEMPT
FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT OR UNLESS
SOLD PURSUANT TO RULE 144 OF SUCH ACT.
The foregoing legend shall be removed from the certificates representing
any Purchased Securities, at the request of the holder thereof, at such time as
(i) they become eligible for resale pursuant to an effective registration
statement or Rule 144(k) under the Securities Act or (ii) the Company shall have
received an opinion of counsel or other evidence reasonably acceptable to the
Company to the effect that any transfer of the Purchased Securities represented
by such certificates will not violate the Securities Act and applicable state
securities laws.
SECTION 4.7. Further Limitations on Disposition. Without in any way
limiting the representations set forth above, Purchaser will not to make any
disposition of all or any portion of the Purchaser's Purchased Securities and
any securities received upon exercise of the Warrant or the Additional Warrant
unless and until one of the following conditions have been satisfied:
(i) There is then in effect a Registration Statement under the
Securities Act covering the shares intended to be disposed of, and such
disposition is made in accordance with such Registration Statement; or
(ii) The Purchaser shall have notified the Company of the proposed
disposition and shall have furnished the Company with a reasonably detailed
statement of the circumstances surrounding the proposed disposition, and if
reasonably requested by the Company, the Purchaser shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company
to the effect that such disposition will not require registration under the
Securities Act, or the Purchaser shall have otherwise sold such shares
pursuant to Rule 144 under the Securities Act.
SECTION 4.8. Accredited Investor. The Purchaser hereby represents and
warrants that it is an accredited investor as defined inRule 501(a) of
Regulation D promulgated under the Securities Act.
SECTION 4.9. Brokers or Finders. The Purchaser hereby represents that it
has not taken any action that would result in the Company incurring any
liability for brokerage or finders' fees or agents' commissions for any similar
charges in connection with the transactions contemplated by this Agreement.
ARTICLE V
CONDITIONS TO THE PURCHASER'S OBLIGATIONS TO PURCHASE THE INITIAL OR REQUESTED
SHARES
The Purchaser's obligation to purchase the Initial Shares or the Requested
Shares pursuant to Section 2.1 of this Agreement is subject to compliance by the
Company with its agreements and representations herein contained, and to the
satisfaction, on or prior to the applicable Closing Date, of the following
conditions (except to the extent any such conditions may be waived in writing by
the Purchaser):
SECTION 5.1. Representations and Warranties. The Company's representations
and warranties contained in Article III hereof shall be true and correct in all
material respects on and as of such Closing Date with the same force and effect
as though made on and as of such Closing Date and the Company shall have
performed and complied with all conditions and agreements required to be
performed or complied with by each of them prior to such Closing.
SECTION 5.2. Legality; Governmental and Other Authorizations. The purchase
of the Purchased Securities to be acquired on such Closing Date by the Purchaser
shall not be prohibited by any law or governmental order or regulation, and
shall not subject the Purchaser to any penalty, special tax or other onerous
condition. All necessary consents, approvals, licenses, permits, orders and
authorizations of, or registrations, declarations and filings with, any
governmental or administrative agency or of or with any other Person, with
respect to any of the transactions contemplated by this Agreement shall have
been duly obtained or made and shall be in full force and effect other than any
applicable state securities law or blue sky filings.
ARTICLE VI
CONDITIONS TO THE COMPANY'S OBLIGATIONS
The Company's obligation to sell and issue the Purchased Securities
pursuant to this Agreement is subject to compliance by the Purchaser with the
agreements herein contained, and to the satisfaction on or prior to the
applicable Closing Date, of the following conditions:
SECTION 6.1. Representations. The representations made by Perseus in
Article IV hereof shall be true and correct in all material respects when made
and shall be true and correct in all material respects as of such Closing Date.
SECTION 6.2. Legality; Governmental and Other Authorizations. The issuance
and sale of the Purchased Securities by the Company at such Closing shall not be
prohibited by any law or governmental order or regulation, and shall not subject
the Company to any penalty, special tax, or other onerous condition. All
necessary consents, approvals, licenses, permits, orders and authorizations of,
or registrations, declarations and filings with, any governmental or
administrative agency or of or with any other Person, with respect to any of the
transactions contemplated by this Agreement shall have been duly obtained or
made and shall be in full force and effect other than any applicable state
securities law or blue sky filings.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Notices. All demands, notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
and shall be personally delivered or sent by facsimile machine (with a
confirmation copy sent by one of the other methods authorized in this Section),
commercial (including FedEx) or U.S. Postal Service overnight delivery service,
or, deposited with the U.S. Postal Service mailed first class, registered or
certified mail, postage prepaid, as set forth below:
If to the Company, addressed to:
F. William Capp President and CEO
Beacon Power Corporation
234 Ballardvale Street
Wilmington, MA 01887
Fax: (978) 988-1337
with a copy to:
Edwards & Angell, LLP
101 Federal Street
Boston, MA 02110
Attention: Albert L. Sokol, Esq.
Fax: (617) 439-4170
If to Perseus Capital or the Purchaser at the address set forth on the
signature page hereto.
Notices shall be deemed given upon the earlier to occur of (i) receipt by
the party to whom such notice is directed; (ii) if sent by facsimile machine, on
the day (other than a Saturday, Sunday or legal holiday in the jurisdiction to
which such notice is directed) such notice is sent if sent (as evidenced by the
facsimile confirmed receipt) prior to 5:00 p.m. Eastern Time and, if sent after
5:00 p.m. Eastern Time, on the day (other than a Saturday, Sunday or legal
holiday in the jurisdiction to which such notice is directed) after which such
notice is sent; (iii) on the first business day (other than a Saturday, Sunday
or legal holiday in the jurisdiction to which such notice is directed) following
the day the same is deposited with the commercial carrier if sent by commercial
overnight delivery service; or (iv) the fifth day (other than a Saturday, Sunday
or legal holiday in the jurisdiction to which such notice is directed) following
deposit thereof with the U.S. Postal Service as aforesaid. Each party, by notice
duly given in accordance therewith may specify a different address for the
giving of any notice hereunder.
SECTION 7.2. Amendments and Waivers, Joinder. Except as otherwise expressly
provided herein, any term of this Agreement may be amended only with the written
consent of the Company and the Purchaser. Any amendment or waiver effected in
accordance with this Section shall be binding upon the Company and each holder
of any Purchased Securities sold pursuant to this Agreement.
SECTION 7.3. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER
PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT, ANY OF THE RELATED
AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original and all of which will
constitute one and the same agreement.
SECTION 7.5. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement and understanding of the parties hereto with respect to the
subject matter hereof. This Agreement supersedes all prior and contemporaneous
discussions, agreements and understandings related to said subject matter.
SECTION 7.6. Survival of Representations and Warranties, etc. All
representations and warranties contained herein shall survive until 12 months
from the date hereof.
SECTION 7.7. Assignment. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto, whether so expressed or
not, and, in particular, shall inure to the benefit of and be enforceable by the
holder or holders at the time of any of the Purchased Securities. The
Purchaser's obligations hereunder may be assigned by Perseus to one or more of
its affiliates provided such transferee agrees in writing to be bound by the
provisions hereof that apply to the "Purchaser."
SECTION 7.8. Governing Law. This Agreement shall be governed by the laws of
the State of Delaware, without regard to the conflicts of law provisions
thereunder.
IN WITNESS WHEREOF, this Agreement is executed and delivered as of the date
first written above by the undersigned who hereby agrees to be bound by the
terms and provisions set forth in the Agreement.
BEACON POWER CORPORATION
By:/s/ James M. Spiezio
----------------------------------------
Name: James M. Spiezio
Title: Chief Financial Officer
PERSEUS 2000 EXPANSION FUND, L.L.C.
By: /s/ Kenneth M. Socha
-------------------------------------
Name: Kenneth M. Socha
Title: Senior Managing Director
Address: 2099 Pennsylvania Ave., NW
Suite 900
Washington, DC 20006
PERSEUS CAPITAL , L.L.C.
By: /s/ Kenneth M. Socha
-------------------------------------
Name: Kenneth M. Socha
Title: Senior Managing Director
Address: 2099 Pennsylvania Ave., NW
Suite 900
Washington, DC 20006
EXHIBIT A
Form of Registration Rights Agreement
EXHIBIT B
Form of Notice of Call
To: [Insert Purchaser Name] Dated: ____________
Beacon Power Corporation (the "Company"), pursuant to the provisions set
forth in Section 2.1 of the Investment Agreement by and between the Company and
the Purchaser (the "Investment Agreement"), hereby provides written notice to
the Purchaser of the Company's request that the Purchaser purchase _____ shares
of the Company's Common Stock for an aggregate purchase price of [$__] (the
"Purchase Price"), all in accordance with Section 2.1 of the Investment
Agreement. Capitalized terms used but not defined herein shall have the meanings
attributed to such terms in the Investment Agreement.
In accordance with the provisions of the Investment Agreement, the Company
requests the subscription and disbursement by the Purchaser of the amount of the
Purchase Price. The Purchaser is requested to pay such amount to [Insert Wire
Transfer Instructions].
Against disbursement by the Purchaser in accordance with Section 2.1 of the
Purchase Agreement, the Company will deliver to the Purchaser a stock
certificate evidencing ownership of the Requested Shares to the address of the
Purchaser set forth in the Investment Agreement, unless otherwise indicated in
writing by the Purchaser.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
certificate, this ___ day of __________, 2005.
BEACON POWER CORPORATION
By:
-------------------------------------
Name:
Title:
EXHIBIT C
THIS WARRANT AND THE SHARES PURCHASABLE HEREUNDER HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
NEITHER THIS WARRANT NOR SUCH SHARES MAY BE SOLD OR TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION IN EFFECT UNDER SUCH ACT UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL OR OTHER EVIDENCE REASONABLY ACCEPTABLE TO IT DEMONSTRATING
THAT SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH
ACT.
Common Stock Purchase Warrant
To Purchase Shares of Common Stock of
Beacon Power Corporation
__________, 2005
FOR VALUE RECEIVED, Beacon Power Corporation, a Delaware corporation (the
"Company"), hereby grants to [_____________] (together with its permitted
successors and assigns, the "Registered Holder"), the right to purchase at any
time up to and including April ___, 2010 (the "Termination Date"), the number of
shares of fully paid and nonassessable Common Stock of the Company, $0.01 par
value per share (the "Common Stock", and those shares of Common Stock
purchasable under this Warrant being the "Warrant Shares"), equal to the product
of (i) 806,400 divided by(ii) the Warrant Price (as defined below) then in
effect, for a purchase price of 120% of the Per Share Price as of the date
hereof (as defined in the Investment Agreement, dated as of the date hereof, by
and among the Company, the Registered Holder and Perseus Capital, L.L.C.
("Investment Agreement")), which Per Share Price may be adjusted from time to
time for purposes of this Warrant and the calculation of the Warrant Price only
during the six-month period following the date hereof pursuant to Section 2.4 of
the Investment Agreement (the "Warrant Price"). For the avoidance of doubt, any
adjustments to the Per Share Price under the terms of the Investment Agreement
that may occur after the six-month period following the date hereof shall be
disregarded for purposes of calculating the Warrant Price hereunder.
1. EXERCISE.
(a) This Warrant may be exercised by the Registered Holder on or before the
Termination Date, in whole or in part, by surrendering this Warrant, with the
purchase form appended hereto as Exhibit I duly executed by the Registered
Holder at the principal executive offices of the Company, or at such other
office or agency as the Company may designate, accompanied by payment in full,
in lawful money of the United States, of the Warrant Price payable in respect of
the number of Warrant Shares purchased upon such exercise.
(b) The Registered Holder may, at its option, elect to pay some or all of
the Warrant Price payable upon an exercise of this Warrant by surrender of this
Warrant at the principal executive office of the Company, or at such other
office or agency as the Company may designate, together with the purchase form
attached hereto as Exhibit I to exercise by means of a net issuance exercise, in
which event the Company shall issue to the Registered Holder that number of
Warrant Shares equal to the total number of Warrant Shares, minus the product
obtained by multiplying (x) the total number of Warrant Shares (or, if only a
portion of the Warrant is being exercised, the portion of the Warrant being
cancelled, at the date of such calculation) by (y) a fraction, the numerator of
which shall be the Warrant Price per share and the denominator of which shall be
the Fair Market Value per share of Common Stock as of the Exercise Date. The
"Fair Market Value" per share of Common Stock shall be determined as follows:
(i) As long as the Common Stock is listed on a national securities
exchange, the NASDAQ Small Cap Market, the NASDAQ National Market or
another nationally recognized trading system as of the Exercise Date, the
Fair Market Value per share of Common Stock shall be deemed to be the
average of the high and low reported sale prices per share of Common Stock
thereon on the trading day immediately preceding the Exercise Date
(provided that if no such price is reported on such day, the Fair Market
Value per share of Common Stock shall be determined pursuant to clause
(ii)).
(ii) In all other cases, the Fair Market Value per share of Common
Stock shall be deemed to be the amount most recently determined by the
Board of Directors to represent the fair market value per share of the
Common Stock. Notwithstanding the foregoing, if the Board of Directors has
not made such a determination within the three-month period prior to the
Exercise Date, then (A) the Board of Directors shall make a determination
of the Fair Market Value per share of the Common Stock within 20 days of a
request by the Registered Holder that it do so, and (B) the exercise of
this Warrant pursuant to this subsection 1(b) shall be delayed until such
determination is made.
(c) Each exercise of this Warrant shall be deemed to have been effected
immediately prior to the close of business on the day on which this Warrant
shall have been surrendered to the Company as provided in subsection 1(a) above
(the "Exercise Date"). At such time, the person or persons in whose name or
names any certificates for Warrant Shares shall be issuable upon such exercise
as provided in subsection 1(d) below shall be deemed to have become the holder
or holders of record of the Warrant Shares represented by such certificates.
(d) As soon as practicable after the exercise of this Warrant in full or in
part, and in any event within twenty (20) days thereafter, the Company, at its
expense, will cause to be issued in the name of, and delivered to, the
Registered Holder, or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to
which the Registered Holder shall be entitled upon such exercise; and
(ii) in case such exercise is in part only, a new warrant or warrants
(dated the date hereof) of like tenor, calling in the aggregate on the face
or faces thereof for the number of Warrant Shares equal (without giving
effect to any adjustment therein) to the number of such shares called for
on the face of this Warrant minus the sum of: (a) the number of such shares
purchased by the Registered Holder upon such exercise and (b) the number of
Warrant Shares (if any) covered by the portion of this Warrant cancelled in
payment of the total Warrant Price payable upon such exercise pursuant to
subsection 1(b) above.
2. ADJUSTMENTS.
(a) Adjustment for Stock Splits and Combinations. If the Company shall at
any time or from time to time after the date on which this Warrant was first
issued (the "Original Issue Date") effect a subdivision of the outstanding
Common Stock, the number of Warrant Shares then in effect immediately before
that subdivision shall be proportionately increased and the Warrant Price shall
be proportionately decreased. If the Company shall at any time or from time to
time after the Original Issue Date combine the outstanding shares of Common
Stock, the number of Warrant Shares shall be proportionately decreased and the
Warrant Price shall be proportionately increased. Any adjustment under this
paragraph shall become effective at the close of business on the date the
subdivision or combination becomes effective.
(b) Adjustments for Other Dividends and Distributions. In the event the
Company at any time or from time to time after the Original Issue Date shall
make or issue, or fix a record date for the determination of holders of Common
Stock entitled to receive, a dividend or other distribution payable in
securities of the Company or in cash or other property, then and in each such
event the Registered Holder shall receive upon exercise hereof, in addition to
the number of shares of Common Stock issuable hereunder, the kind and amount of
securities of the Company and/or cash and other property which the Registered
Holder would have been entitled to receive had this Warrant been exercised on
the date of such event and had the Registered Holder thereafter, during the
period from the date of such event to and including the Exercise Date, retained
any such securities receivable, giving application to all adjustments called for
during such period under this Section 2 with respect to the rights of the
Registered Holder.
(c) Adjustment for Mergers or Reorganizations, etc. If there shall occur
any reclassification, reorganization, recapitalization, consolidation, sale of
all or substantially all assets or merger involving the Company in which the
Common Stock is converted into or exchanged for securities, cash or other
property (other than a transaction covered by subsection 2(a) above), then,
following any such reclassification, reorganization, recapitalization,
consolidation, sale of all or substantially all assets or merger, and without
payment of any additional consideration thereof, the Registered Holder shall
receive upon exercise hereof the kind and amount of securities, cash or other
property which the Registered Holder would have been entitled to receive if,
immediately prior to such reclassification, reorganization, recapitalization,
consolidation or merger, sale of all or substantially all assets, the Registered
Holder had held the number of shares of Common Stock subject to this Warrant,
giving application to all adjustments called for during such period under this
Section 2 with respect to the rights of the Registered Holder.
The foregoing provisions of this Section 2(c) shall similarly apply to
successive reorganizations, consolidations, mergers, sales and transfers and to
the stock or securities of any other corporation that are at the time receivable
upon the exercise of this Warrant. If the per share consideration payable to the
holder hereof for Warrant Shares in connection with any such transaction is in a
form other than cash or marketable securities, then the value of such
consideration shall be determined in good faith by the Company's Board of
Directors. In all events, appropriate adjustment (as determined in good faith by
the Company's Board of Directors) shall be made in the application of the
provisions of this Warrant with respect to the rights and interests of the
Holder after the transaction, to the end that the provisions of this Warrant
shall be applicable after that event, as near as reasonably may be, in relation
to any shares or other property deliverable after that event upon exercise of
this Warrant. (d) Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment pursuant to this Section 2, the Company at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to the Registered Holder a certificate setting
forth such adjustment or readjustment (including the kind and amount of
securities, cash or other property for which this Warrant shall be exercisable,
the Warrant Price and the method of calculation of each) and showing in detail
the facts upon which such adjustment or readjustment is based.
3. FRACTIONAL SHARES. The Company shall not be required upon the exercise
of this Warrant to issue any fractional shares, and shall round any fractional
shares to the next highest whole number of shares. If a fractional share
interest arises upon any exercise or conversion of the Warrant, the Company
shall eliminate such fractional share interest by paying the Registered Holder
an amount computed by multiplying the fractional interest by the Fair Market
Value of a full share of common Stock.
4. REPRESENTATIONS AND WARRANTIES BY THE REGISTERED HOLDER. The Registered
Holder represents and warrants to the Company as follows:
(a) Upon each exercise hereof, the Registered Holder must reaffirm to the
Company that the Registered Holder is an "accredited investor" as that term is
defined in Rule 501 under the Securities Act of 1933, as amended (the "Act").
The Registered Holder is purchasing the Warrant and the Warrant Shares for such
Registered Holder's own account for investment purposes only and not with a view
to, or for the resale in connection with, any "distribution" thereof for
purposes of the Act. The Registered Holder understands that the Warrant and the
Warrant Shares have not been registered under the Act by reason of their
issuance in a transaction exempt from the registration and prospectus delivery
requirements of the Act pursuant to Section 4(2) thereof, which exemption
depends upon, among other things, the bona fide nature of Registered Holder's
investment intent as expressed herein. In this connection, the Registered Holder
understands that, in the view of the U.S. Securities and Exchange Commission
(the "SEC"), the statutory basis for such exemption may be unavailable if the
Registered Holder's representation was predicated solely upon a present
intention to hold the Warrant or the Warrant Shares for the minimum capital
gains period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Warrant or the Warrant Shares,
or for a period of one year or any other fixed period in the future.
(b) The Registered Holder understands that the Warrant and the Warrant
Shares must be held by the Registered Holder indefinitely, and that the
Registered Holder must therefore bear the economic risk of such investment
indefinitely, unless a subsequent disposition thereof is registered under the
Act or is exempted from such registration. The Registered Holder further
understands that the Warrant and the Warrant Shares have not been qualified
under any state's blue sky laws by reason of their issuance in a transaction
exempt from the qualification requirements of applicable blue sky laws, which
exemptions depend upon, among other things, the bona fide nature of the
Registered Holder's investment intent expressed above. In addition, the
Registered Holder understands that any certificate evidencing the Warrant and
the Warrant Shares will be imprinted with a legend that prohibits the transfer
of the Warrant and the Warrant Shares unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(c) The Registered Holder is familiar with the provisions of Rule 144,
promulgated under the Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof, in a non-public offering subject to the satisfaction of certain
conditions.
(d) The Registered Holder further understands that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Act, compliance with Regulation A, or some other registration exemption will be
required; and that, notwithstanding the fact that Rule 144 is not exclusive, the
staff of the SEC has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
5. REQUIREMENTS FOR TRANSFER.
(a) This Warrant and the Warrant Shares shall not be sold or transferred
unless either (i) they first shall have been registered under the Act and under
applicable state securities or blue sky laws, or (ii) the Company first shall
have been furnished with an opinion of legal counsel, reasonably satisfactory to
the Company, to the effect that such sale or transfer is exempt from the
registration requirements of the Act.
(b) Each certificate representing Warrant Shares shall bear a legend
substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. SUCH
SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION IN
EFFECT UNDER SUCH ACT UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL OR OTHER
EVIDENCE REASONABLY ACCEPTABLE TO IT DEMONSTRATING THAT SUCH SALE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SAID ACT OR
UNLESS SOLD PURSUANT TO RULE 144 OF SUCH ACT.
The foregoing legend shall be removed from the certificates representing
any Warrant Shares, at the request of the holder thereof, at such time as (i)
they become eligible for resale pursuant to an effective registration statement
or Rule 144(k) under the Act or (ii) the Company shall have received either an
opinion of counsel or a "no-action" letter from the SEC to the effect that any
transfer of the Warrant Shares represented by such certificates will not violate
the Act and applicable state securities laws.
6. NO IMPAIRMENT. The Company will not, by amendment of its charter through
reorganization, transfer of assets, consolidation, merger, dissolution, issuance
or sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the holder of this Warrant against impairment.
7. NOTICES OF RECORD DATE, ETC. In the event:
(a) that the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right; or
(b) of any capital reorganization of the Company, any reclassification of
the Common Stock of the Company, any consolidation or merger of the Company with
or into another corporation (other than a consolidation or merger in which the
Company is the surviving entity and its Common Stock is not converted into or
exchanged for any other securities or property), or any transfer of all or
substantially all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company, then, and in each such case, the Company will mail or cause to
be mailed to the Registered Holder a notice specifying, as the case may be, (i)
the record date for such dividend, distribution or right, and the amount and
character of such dividend, distribution or right, or (ii) the effective date on
which such reorganization, reclassification, consolidation, merger, transfer,
dissolution, liquidation or winding-up is to take place, and the time, if any is
to be fixed, as of which the holders of record of Common Stock (or such other
stock or securities at the time deliverable upon the exercise of this Warrant)
shall be entitled to exchange their shares of Common Stock (or such other stock
or securities) for securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger, transfer, dissolution,
liquidation or winding-up. Such notice shall be mailed at least ten days prior
to the record date or effective date for the event specified in such notice.
8. STOCK FULLY PAID, RESERVATION OF STOCK. All of the Warrant Shares
issuable upon the exercise of the rights represented by this Warrant will, upon
issuance and receipt of the purchase price therefor, be validly issued, fully
paid and nonassessable, and free from all taxes, liens and charges except for
restrictions on transfer provided for herein or under applicable federal and
state securities laws. The Company will at all times reserve and keep available,
solely for issuance and delivery upon the exercise of this Warrant, such number
of shares of Common Stock and other securities, cash and/or property, as from
time to time shall be issuable upon the exercise of this Warrant.
9. EXCHANGE OF WARRANTS. Upon the surrender of this Warrant by the
Registered Holder, properly endorsed, to the Company at the principal executive
offices of the Company, the Company will, subject to the provisions of Sections
4 and 5 hereof, issue and deliver to or upon the order of such Holder, at the
Company's expense, a new Warrant or Warrants of like tenor, in the name of the
Registered Holder or as the Registered Holder (upon payment by the Registered
Holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock (or other
securities, cash and/or property) then issuable upon exercise of this Warrant.
10. REPLACEMENT OF WARRANTS. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in the case of loss, theft or destruction) upon delivery of an
indemnity agreement (without any obligation for a surety or other security
therefor) in an amount reasonably satisfactory to the Company, or (in the case
of mutilation) upon surrender and cancellation of this Warrant, the Company will
issue, in lieu thereof, a new Warrant of like tenor.
11. TRANSFERS, ETC.
(a) The Company will maintain a register containing the name and address of
the Registered Holder of this Warrant. The Registered Holder may change its or
his address as shown on the warrant register by written notice to the Company
requesting such change.
(b) This Warrant and all rights hereunder are transferable, in whole or in
part, upon surrender of this Warrant with a properly executed assignment in a
form reasonably acceptable to the Company at the principal executive offices of
the Company.
(c) Until any transfer of this Warrant is made in the Warrant register, the
Company may treat the Registered Holder as the absolute owner hereof for all
purposes; provided, however, that if and when this Warrant is properly assigned
in blank, the Company may (but shall not be obligated to) treat the bearer
hereof as the absolute owner hereof for all purposes, notwithstanding any notice
to the contrary.
12. MAILING OF NOTICES, ETC. All notices and other communications from the
Company to the Registered Holder shall be mailed by first-class certified or
registered mail, postage prepaid, to the address last furnished to the Company
in writing by the Registered Holder. All notices and other communications from
the Registered Holder or in connection herewith to the Company shall be mailed
by first-class certified or registered mail, postage prepaid, to the Company at
its principal executive office. If the Company should at any time change the
location of its principal executive office to a place other than as set forth
below, it shall give prompt written notice to the Registered Holder and
thereafter all references in this Warrant to the location of its principal
executive office at the particular time shall be as so specified in such notice.
13. NO RIGHTS AS STOCKHOLDER. Until the exercise of this Warrant, the
Registered Holder shall not have or exercise any rights by virtue hereof as a
stockholder of the Company.
15. CHANGE OR WAIVER. Any term of this Warrant may be amended or waived
upon the written consent of the Company and the Registered Holder.
16. SECTION HEADINGS. The Section headings in this Warrant are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
17. GOVERNING LAW. This Warrant will be governed by and construed in
accordance with the internal laws of the State of Delaware without giving effect
to the conflict or choice of law provision thereof that would give rise the
application of the domestic substantive law of any other jurisdiction.
EXECUTED as of the Date of Issuance indicated above.
BEACON POWER CORPORATION
By:
-------------------------------------
Name:
Title:
EXHIBIT I
PURCHASE FORM
To: Beacon Power Corporation Dated: ____________
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby irrevocably elects to purchase (check applicable box):
|_| _____ shares of the Common Stock covered by such Warrant; or
|_| the maximum number of shares of Common Stock covered by such
Warrant pursuant to the cashless exercise procedure set forth
in Section 1(b).
The undersigned herewith makes payment of the full Warrant Price for such
shares at the price per share provided for in such Warrant, which is $____. Such
payment takes the form of (check applicable box or boxes):
|_| $______ in lawful money of the United States; and/or
|_| the cancellation of such number of Warrant Shares as is
necessary, in accordance with the formula set forth in Section
1(b), to exercise this Warrant with respect to the maximum
number of Warrant Shares purchasable pursuant to the cashless
exercise procedure set forth in Section 1(b).
Please issue a certificate representing said shares of Common Stock in the
name of the undersigned or in such other name as is specified below:
The undersigned is an "accredited investor" as defined in Regulation D
promulgated under the Securities Act of 1933, as amended.
Name of Entity:
-----------------------
Signature of
Authorized Person:
--------------------
Address:
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Date:
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