EXHIBIT 2.1
FIRST AMENDMENT TO ARRANGEMENT AGREEMENT
This First Amendment to Arrangement Agreement (this "Amendment") is
dated as of September 27, 2005 and is by and among Beacon Power Corporation, a
Delaware corporation ("Beacon"), Beacon Acquisition Co., a Nova Scotia unlimited
liability company and a wholly owned subsidiary of Beacon ("Acquisitionco"), and
NxtPhase T&D Corporation, a Canada corporation ("NxtPhase"). Beacon,
Acquisitionco and NxtPhase are sometimes referred to herein collectively as the
"Parties" and individually as a "Party." Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed to them in the
Original Agreement (as defined below).
RECITALS
WHEREAS, Beacon, Acquisitionco and NxtPhase entered into that certain
Arrangement Agreement (the "Original Agreement") dated as of April 22, 2005;
WHEREAS, the Parties desire to amend the Original Agreement as set
forth herein;
WHEREAS, pursuant to the terms of each Letter Agreement among Beacon,
NxtPhase and each NxtPhase Shareholder other than Beacon, Western Technology
Seed Investment and Xxxxx Xxxxxxxxx (each, a "NxtPhase Class A Shareholder"),
each NxtPhase Class A Shareholder's prior written consent is required for any
amendment to Section 2.1 of and Schedule "A" to the Original Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the Parties agree as
follows:
1. Definitions.
(a) A new definition of "1934 Act," as follows, is hereby inserted
in Section 1.1 of the Original Agreement:
"1934 Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder;
(b) The definition of "Beacon Equity Incentive Plan" as set forth in
Section 1.1 of the Original Agreement is deleted and the following is hereby
inserted in lieu thereof:
"Beacon Equity Incentive Plan" means Beacon's Second Amended
and Restated 1998 Stock Incentive Plan, as may be amended and
restated from time to time, pursuant to which Beacon may issue
Beacon RSUs and options to purchase Beacon Shares;
(c) The definition of "Beacon Meeting" as set forth in Section 1.1 of
the Original Agreement is deleted and the following is hereby inserted in lieu
thereof:
"Beacon Meeting" means the special meeting or the annual
meeting of the holders of Beacon Shares, and any adjournment
thereof, to be held to consider and, if thought fit, approve
the issuance of Beacon Shares in connection with the
Arrangement;
(d) The definition of "Final Order" as set forth in Section 1.1 of the
Original Agreement is deleted and the following is hereby inserted in lieu
thereof:
"Final Order" means the final order of the Court approving the
Arrangement and the fairness of the terms and conditions
thereof to the persons receiving Beacon Shares in the
Arrangement following the application contemplated by Section
2.4 of this Agreement.
(e) The definition of "Proxy Circular" as set forth in Section 1.1 of
the Original Agreement is deleted and the following is hereby inserted in lieu
thereof:
"Proxy Circular" means the joint proxy statement that
constitutes (i) notice of the Beacon Meeting and accompanying
proxy statement, including all schedules and exhibits thereto,
to be sent to Beacon Shareholders in connection with the
Beacon Meeting and (ii) notice of the NxtPhase Meeting and
accompanying information circular, including all schedules and
exhibits thereto, to be sent to NxtPhase Shareholders in
connection with the NxtPhase Meeting;
(f) The definition of "Registration Statement" as set forth in Section
1.1 of the Original Agreement is hereby deleted.
(g) A new definition of "Section 3(a)(10)," as follows, is hereby
inserted in Section 1.1 of the Original Agreement:
"Section 3(a)(10)" means Section 3(a)(10) of the 1933 Act;
2. The introductory sentence of Section 2.1 of the Original Agreement
is deleted and the following is hereby inserted in lieu thereof:
2.1 Share Exchange. Beacon will acquire all of the issued and
outstanding NxtPhase Shares in accordance with the Plan of
Arrangement as follows, in the following order:
3. Section 2.1(b) of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
(b) each NxtPhase Share held by a NxtPhase Shareholder,
other than those held by Working Opportunity Fund or
by NxtPhase Shareholders who have exercised the
Dissent Right and other than those issued pursuant to
the Perseus Financing, shall be, and be deemed to be,
transferred to Acquisitionco, free and clear of all
Encumbrances, in consideration of the issue to such
NxtPhase Shareholder of such number of Beacon Shares
calculated pursuant to Section 2.1(d) as the
"Exchange Value", in accordance with the Plan of
Arrangement;
4. A new Section 2.1(c), as follows, is hereby inserted into the
Original Agreement:
(c) each NxtPhase Share held by Working Opportunity Fund
shall be, and be deemed to be, transferred to
Acquisitionco, free and clear of all Encumbrances, in
consideration of the issue to Working Opportunity
Fund of such number of Beacon Shares calculated
pursuant to Section 2.1(d) as the "Exchange Value",
in accordance with the Plan of Arrangement;
5. Sections 2.1(c), 2.1(d), 2.1(e) and 2.1(f) of the Original Agreement
shall be amended to be Sections 2.1(d), 2.1(e), 2.1(f) and 2.1(g), respectively.
6. Section 2.2 of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
2.2 Proxy Circular.
As soon as practicable, Beacon will, subject to the prior
review and written approval of NxtPhase, prepare the Proxy
Circular for mailing to Beacon Shareholders and to NxtPhase
Shareholders. The Proxy Circular will include all such
information as is necessary to ensure compliance with the
requirements of applicable corporate and securities laws of
Beacon and NxtPhase in connection with the shareholder
approval required by those companies for the Arrangement and
compliance with the Interim Order, subject to the receipt by
NxtPhase of an exemption order from the Director of the CBCA.
NxtPhase will promptly apply to the Director of the CBCA for
an exemption order exempting the Proxy Circular from the
requirements of the CBCA with respect to the contents thereof.
Beacon will ensure that all information included in the Proxy
Circular, except such information relating to NxtPhase, does
not contain a misrepresentation or any untrue statement of a
material fact or omit to state a material fact required to be
stated in the Proxy Circular that is necessary to make any
statement that it makes not misleading in light of the
circumstances in which it is made. NxtPhase will provide to
Beacon all information about itself, its Affiliates and their
respective directors, officers and shareholders as may be
reasonably necessary to be included in the Proxy Circular
pursuant to applicable laws. NxtPhase will ensure that all
information included in the Proxy Circular relating to
NxtPhase does not contain a misrepresentation or any untrue
statement of a material fact or omit to state a material fact
required to be stated in the Proxy Circular that is necessary
to make any statement that it makes not misleading in light of
the circumstances in which it is made. If, at any time prior
to the time the SEC definitively informs Beacon that it has no
further comments with respect to or will not review the
preliminary Proxy Circular, any event or circumstance relating
to NxtPhase or any of its Affiliates, or its or their
respective officers, directors or shareholders, should be
discovered by NxtPhase which is required to be set forth in
the Proxy Circular, NxtPhase shall promptly inform Beacon.
7. Section 2.3(a) of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
(a) As soon as practicable after the SEC definitively
informs Beacon that it has no further comments with
respect to or will not review the preliminary Proxy
Circular, NxtPhase will convene the NxtPhase Meeting
and Beacon will convene the Beacon Meeting. Each of
NxtPhase and Beacon will file the Proxy Circular with
the appropriate regulatory authorities in all
jurisdictions where the same is required to be filed
and will mail the same to their shareholders and such
other appropriate persons in accordance with
applicable law and the Interim Order. The parties
will cooperate with each other in connection with the
preparation of documentation for submission of the
Proxy Circular to regulatory authorities and the
delivery to shareholders and other appropriate
persons.
8. The introductory sentence of Section 2.4(b) of the Original
Agreement is deleted and the following is hereby inserted in lieu thereof:
(b) The notice of motion for the application for the
Interim Order shall request that the Interim Order
provide that:
9. A new Section 2.4(b)(iv), as follows, is hereby inserted in the
Original Agreement:
(iv) prior to the hearing of the motion for the Interim
Order, the Court has been advised that, subject to
the Court's final approval of the Arrangement, for
the purpose of issuing and distributing the Beacon
Shares pursuant to the Arrangement, Beacon will rely
on the exemption set forth in Section 3(a)(10) from
the registration requirements of the 1933 Act.
10. A new Section 2.4(c), as follows, is hereby inserted in the
Original Agreement:
(c) NxtPhase shall provide Beacon with an opinion to be
submitted to the SEC, in form and substance
satisfactory to Beacon, from counsel licensed to
practice in British Columbia that states that before
the Court can give its approval for the Arrangement,
it must consider the fairness to persons receiving
Beacon Shares in the Arrangement.
11. Section 2.5(a) of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
(a) U.S. Federal Securities Laws. As promptly as
practicable after the date hereof, Beacon and
NxtPhase shall cooperate in the preparation of the
Proxy Circular to be mailed to Beacon Shareholders
and NxtPhase Shareholders in connection with the
Arrangement and the transactions contemplated
thereby. Beacon shall use reasonable best efforts to
promptly respond to any comments of the SEC, and to
the extent such comments relate to NxtPhase, NxtPhase
shall use reasonable best efforts to provide to
Beacon any assistance required. Beacon shall use
reasonable best efforts to cause all documents that
it is solely responsible for filing with the SEC or
other regulatory authorities under this Section 2.5,
except information relating to NxtPhase contained in
such documents, to comply in all material respects
with all applicable requirements of law and the rules
and regulations promulgated thereunder and not to
contain any untrue statement of a material fact or
omit to state a material fact required to be stated
therein or necessary to make the statements contained
therein not misleading. NxtPhase will ensure that all
information included in such documents relating to
NxtPhase does not contain a misrepresentation or any
untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary to make the statements contained therein
not misleading. Beacon will advise NxtPhase,
promptly after it receives notice thereof, of the
time when the SEC definitely informs Beacon that it
has no further comments with respect to or will not
review the preliminary Proxy Circular, of the
suspension of qualification of the Beacon Shares
issuable in connection with the Arrangement for
offering or sale in any jurisdiction, or the
initiation or threat of any proceeding for any such
purpose, or of any request by the SEC for additional
information.
12. Section 5.1(b) of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
(b) the SEC shall have definitely informed Beacon that it
has no further comments with respect to or will not
review the preliminary Proxy Circular, and Beacon
shall have received all U.S. state securities or
"blue sky" permits or other authorizations, or
confirmations, as to the availability of an exemption
from registration requirements as may be necessary;
13. Section 5.1(c) of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
(c) the Interim Order and the Final Order shall have been
obtained from the Court in form and substance
satisfactory to each of the parties, acting
reasonably, and shall, to Beacon's satisfaction, not
to be unreasonably withheld or delayed, fulfill all
requirements necessary for Beacon to rely on Section
3(a)(10), including, without limitation, a finding by
the Court, before approving the transaction, that the
terms and conditions of the Arrangement are fair to
those to whom Beacon Shares will be issued;
14. Section 5.1(f) of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
(f) subject to Section 4.7 and any applicable securities
laws in the provinces of Canada, the issuance of the
Beacon Shares pursuant to the Arrangement will be
exempt from registration under Section 3(a)(10) and
freely tradable shares in the United States upon
issuance and will be exempt from the registration and
prospectus requirements of applicable securities laws
in each of the provinces of Canada in which NxtPhase
Shareholders are resident; and
15. Section 5.3(a) of the Original Agreement is deleted and the
following is hereby inserted in lieu thereof:
(a) prior to the Effective Date, Beacon shall have, if
required by the rules of Nasdaq, filed with Nasdaq
any applicable notification forms with respect to the
Beacon Shares issuable in connection with the
Arrangement.
16. The introductory sentence of Section 3.1 of Schedule "A" to the
Original Agreement is deleted and the following is hereby inserted in lieu
thereof:
3.1 The Arrangement. On the Effective Date, the following
shall occur and shall be deemed to occur in the
following order without any further authorization,
act or formality:
17. Section 3.1(b) of Schedule "A" to the Original Agreement is deleted
and the following is hereby inserted in lieu thereof:
(b) each NxtPhase Share held by a NxtPhase Shareholder,
other than those held by Working Opportunity Fund or
by NxtPhase Shareholders who have exercised the
Dissent Right and other than those issued pursuant to
the Perseus Financing, shall be, and be deemed to be,
transferred to Acquisitionco, free and clear of all
Encumbrances, in consideration of the issue to such
NxtPhase Shareholder of such number of Beacon Shares
calculated pursuant to Section 3.1(d) as the
"Exchange Value", in accordance with the Plan of
Arrangement;
18. A new Section 3.1(c) of Schedule "A", as follows, is hereby
inserted in the Original Agreement:
(c) each NxtPhase Share held by Working Opportunity Fund
shall be, and be deemed to be, transferred to
Acquisitionco, free and clear of all Encumbrances, in
consideration of the issue to Working Opportunity
Fund of such number of Beacon Shares calculated
pursuant to Section 3.1(d) as the "Exchange Value",
in accordance with the Plan of Arrangement;
19. Sections 3.1(c), 3.1(d), 3.1(e), 3.1(f), 3.1(g) and 3.1(h) of
Schedule "A" to the Original Agreement shall be amended to be Sections 3.1(d),
3.1(e), 3.1(f), 3.1(g), Section 3.1(h) and Section 3.1(i), respectively, of
Schedule "A".
20. Section 3.1(g) of Schedule "A" to the Original Agreement is deleted
and the following is hereby inserted in lieu thereof:
(h) each NxtPhase Shareholder shall be deemed to have
executed and delivered all consents, releases,
assignments and waivers, statutory or otherwise,
required to sell and transfer such NxtPhase Shares in
accordance with Subsections 3.1(a) - 3.1(d) above;
and
21. Amendment to Letter Agreement. Schedule "D" of the Original
Agreement and each Letter Agreement is hereby amended as set forth below. The
obligations of Beacon to complete the transactions contemplated by the Original
Agreement, as amended by this Amendment, and to file the documents necessary to
give effect to the Arrangement are subject to each of the NxtPhase Class A
Shareholders approving Sections 2, 3, 4, 5, 16, 17, 18, 19, 20 and 21 of this
Amendment.
(a) Any and all references to the "Arrangement Agreement" in each
Letter Agreement are hereby deleted and substituted in their place with the
following: "Arrangement Agreement, as amended by that certain First Amendment to
Arrangement Agreement dated September 27, 2005."
(b) The third sentence of Section (d) of Exhibit A to each Letter
Agreement is amended by deleting the words "/prospectus" and "on Form S-4 (the
"Registration Statement")".
(c) Any and all references to the "Registration Statement" in each
Letter Agreement are hereby deleted and substituted in their place with the
following: "joint proxy statement of Beacon and NxtPhase."
(d) Except as modified and amended by this Section 21, each Letter
Agreement shall remain in full force and effect and is in all other respects
ratified and confirmed.
22. Counterparts. This Amendment may be executed in counterparts, all
of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party hereto and delivered
to the other party, it being understood that all parties need not sign the same
counterpart.
23. Entire Agreement. This Amendment, together with the Original
Agreement, as amended hereby, and all exhibits, schedules and other attachments
thereto constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof. Except as modified and amended by this Amendment, the
Original Agreement shall remain in full force and effect and is in all other
respects ratified and confirmed.
24. Governing Law. This Amendment shall be governed by and construed
and interpreted in accordance with the laws of the Province of British Columbia
and the laws of Canada applicable therein.
25. Severability. Any term or provision of this Amendment that is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Amendment or affecting the validity or enforceability of any of the terms or
provisions of this Amendment in any other jurisdiction. If any provision of this
Amendment is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
IN WITNESS WHEREOF, Beacon, Acquisitionco and NxtPhase have caused this
Amendment to be executed as of the date first above written.
BEACON POWER CORPORATION
By:/s/ F. Xxxxxxx Xxxx
-------------------
Name: F. Xxxxxxx Xxxx
Title: President and CEO
BEACON ACQUISITION CO.
By:/s/ F. Xxxxxxx Xxxx
-------------------
Name: F. Xxxxxxx Xxxx
Title: President
NXTPHASE T&D CORPORATION
By:/s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: President
For purposes of Sections 2, 3, 4, 5, 16, 17, 18, 19, 20 and 21 of this
Amendment:
PERSEUS 2000, L.L.C.
By:/s/ Xxxx X. Xxx
---------------
Name: Xxxx X. Xxx
Title: Managing Director
EL DORADO INVESTMENT COMPANY
By:/s/ Xxxx X. Xxxx
----------------
Name: Xxxx X. Xxxx
Title: Managing Director
WORKING OPPORTUNITY FUND (EVCC) LTD.,
by its manager GrowthWorks Capital Ltd.
By:/s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: SVP Investments
GE CAPITAL EQUITY HOLDINGS, INC.
By:/s/ Xxxx Xxxxxx
---------------
Name: Xxxx Xxxxxx
Title: Vice President
HYDRO-QUEBEC CAPITECH INC.
By:/s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
CANADIAN SCIENCE AND TECHNOLOGY GROWTH FUND, INC.
By:/s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Director
OPG VENTURES INC.
By:/s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Director - Investments
PERSEUS 2000 EXPANSION, L.L.C.
By:/s/ Xxxx X. Xxx
---------------
Name: Xxxx X. Xxx
Title: Managing Director
