FIRST AMENDMENT TO COMMON STOCK PURCHASE AGREEMENT
Exhibit
10.1
FIRST
AMENDMENT TO
This
First Amendment to Common Stock Purchase Agreement (this “First Amendment”) is
dated as of June 19, 2009, by and between Beacon Power Corporation, a Delaware
corporation (the “Company”), and
Seaside 88, LP, a Florida limited partnership (such investor, including its
successors and assigns, “Seaside”).
WHEREAS,
the parties entered into that certain Common Stock Purchase Agreement dated as
of February 19, 2009 (the “Agreement”;
capitalized terms used herein without definition shall have the meanings
assigned to such terms in the Agreement), which Agreement provided for the sale
by the Company to Seaside, and the purchase by Seaside from the Company, of up
to $18,000,000 of shares of Common Stock of the Company on certain Closing Dates
as set forth in the Agreement; and
1. The
following definitions as set forth in Section 1.1 of the Agreement shall be
amended hereby by deleting each in its entirety and substituting therefor the
following:
“Per Share Purchase
Price” shall be an amount equal to the daily volume weighted average of
actual trading prices measured in hundredths of cents of the Common Stock of the
Company on the Trading Market for the ten consecutive trading days prior to a
Closing Date multiplied by 0.86.”
“Subsequent Closing
Date” means March 20, 2009, April 20, 2009, May 20, 2009 and June 20,
2009 and thereafter on the 5th and
20th
of each month (or, if any such day is not a Trading Day, then the first day
thereafter that is a Trading Day) during the term of this Agreement in
accordance with Section 5.1 hereof, except that there shall be no Subsequent
Closing Date during any Delay Period.”
2. The
parties acknowledge that (a) the Company has given Seaside notice of its
election to extend this Agreement for the First Extended Term; (b) that the
Subsequent Closings scheduled for June 20, 2009 and July 5, 2009 (or, if any
such day is not a Trading Day, then the first day thereafter that is a Trading
Day) will complete the Initial Term; and (c) that the Subsequent Closings
scheduled for July 20, 2009, August 5, 2009, August 20, 2009, September 5, 2009,
September 20, 2009 and October 5, 2009 (or, if any such day is not a Trading
Day, then the first day thereafter that is a Trading Day) will comprise the
First Extended Term, in each case subject to adjustment in the event of a Delay
Period under Section 2.6 of the Agreement.
3. Section
2.2 of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:
“2.2 Subsequent
Closings. On each Subsequent Closing Date, Seaside shall
purchase from the Company, and the Company shall issue and sell to Seaside, One
Million Five Hundred Thousand (1,500,000) Shares at the then-applicable Per
Share Purchase Price; provided, however, that in no
event shall the Company issue and sell pursuant to this Agreement at the Initial
Closing and all Subsequent Closings Shares having an aggregate purchase price in
excess of $18,000,000. In the event that the Per Share Purchase
Price, as calculated with respect to any Subsequent Closing Date, is less than
$0.20, then such Subsequent Closing will not occur, nor will the final
Subsequent Closing Date be extended; in each such event, there will be one fewer
Subsequent Closing pursuant to this Agreement. Upon satisfaction or
waiver of the conditions set forth in Sections 2.3, 2.4 and 2.5, each Subsequent
Closing shall occur at the offices of White White & Van Etten PC, 00
Xxxxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000, or such other location as the parties
shall mutually agree.”
4. Section
2.3(a) of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:
“(a) 1,500,000
Shares, registered in the name of Seaside, via the DTC DWAC system, as specified
on the signature pages hereto (or, if fewer, the nearest number of Shares that
would result in the aggregate purchase price for Shares issued during the term
of this Agreement to equal but not exceed $18,000,000);”
5. Section
2.4(a) of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:
“(a) the
purchase price for the Shares being purchased on such Closing Date equal to
1,500,000 (or, if fewer, the number of Shares being sold on such Closing Date)
multiplied by the applicable Per Share Purchase Price for such Closing, by wire
transfer to the account as specified in writing by the Company, less the amount
due Seaside for reimbursement of its expenses as described in Section 5.2
hereof;”
6. Section
2.6 of the Agreement shall be amended hereby by deleting such section in its
entirety and substituting therefor the following:
“2.6 Delay
Periods. No less than ten (10) days before any Subsequent
Closing, the Company may elect at its sole option to delay that and all other
Subsequent Closings for a period (the “Delay Period”) of up to six (6) calendar
months by giving notice of such Delay Period to Seaside and paying Seaside
$100,000. The Company’s rights to elect a Delay Period shall be
limited to once in each of the Initial Term, the First Extended Term and the
Second Extended Term. In the event of such a Delay Period, the
scheduled dates of each following Subsequent Closing (and the scheduled
expiration of the Initial Term, the First Extended Term and/or the Second
Extended Term, as applicable) shall be appropriately adjusted so that the
previously scheduled Closings shall resume on the 5th and
20th
of each month following the expiration of the Delay Period (or, if any such day
is not a Trading Day, then the first day thereafter that is a Trading Day),
without any reduction in the number of Closings otherwise
occurring.”
7. Section
4.12 of the Agreement shall be deleted in its entirety.
8. Section
5.1(c) of the Agreement shall be amended hereby by replacing “no later than
twenty (20) days” with “no later than ten (10) days” as the applicable date by
which the Company must deliver a notice of election and the related payment in
connection with the Company’s option to elect a Second Extended
Term.
9. Section
5.1 of the Agreement shall be amended hereby by adding a new Section 5.1(e) as
follows:
“(e) Notwithstanding
anything else in this Section 5.1, this Agreement shall terminate upon the
completion of any Subsequent Closing in which the aggregate purchase price paid
for Shares under this Agreement would, but for the limitation contained in
Section 2.3(a), equal or exceed $18,000,000.”
10. Except
as otherwise expressly provided in this First Amendment, all provisions of the
Agreement are hereby ratified and agreed to be in full force and effect, and are
incorporated herein by reference.
11. This
First Amendment may be executed in separate counterparts, none of which need
contain the signatures of all parties, each of which shall be deemed to be an
original, and all of which taken together constitute one and the same
instrument. It shall not be necessary in making proof of this First
Amendment to produce or account for more than the number of counterparts
containing the respective signatures of, or on behalf of, all of the parties
hereto. Original signatures transmitted by facsimile shall be
acceptable for purposes of executing this First Amendment. If
original signatures are transmitted by facsimile, the parties shall endeavor in
good faith to deliver to each other executed counterpart originals as soon as
practicable after the date of this First Amendment.
12. This
First Amendment and the Agreement constitute the entire agreement between the
parties with respect to the subject matter hereof, and supersede all prior
written agreements and negotiations and oral understandings, if any, with
respect to such subject matter.
(Signature
Pages Follow)
IN
WITNESS WHEREOF, the parties hereto have caused this First Amendment to Common
Stock Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.
Beacon
Power Corporation
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By:
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/s/ Xxxxx X. Xxxxxxx |
Name: Xxxxx
X. Xxxxxxx
Title: Chief
Financial Officer
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Seaside
88, LP
By: Seaside
88 Advisors, LLC
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By:
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/s/ Xxxxxxx X. Xxxxxx |
Name: Xxxxxxx
X. Xxxxxx
Title: Manager
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