AMENDMENT NO. 3 to RIGHTS AGREEMENT between BEACON POWER CORPORATION and COMPUTERSHARE TRUST COMPANY, N.A. (fka EQUISERVE TRUST COMPANY, N.A.) Dated as of October 24, 2007
Exhibit
3.1
AMENDMENT
NO. 3
to
between
BEACON
POWER CORPORATION
and
COMPUTERSHARE
TRUST COMPANY, N.A.
(fka EQUISERVE
TRUST COMPANY, N.A.)
Dated
as
of October 24, 2007
This
AMENDMENT NO. 3, dated as of October 24, 2007 to Rights Agreement, dated
as of
September 25, 2002, is between Beacon Power Corporation, a Delaware corporation
(the “Company”),
and
Computershare
Trust Company, N.A. (fka
Equiserve
Trust Company, N.A.), as Rights Agent (the “Rights
Agent”),
as
previously amended by Amendment No. 1 dated as of December 27, 2002 and
Amendment No. 2 dated as of August 8, 2007 (as amended, the “Rights
Agreement”).
Capitalized terms used but not defined herein have the meanings ascribed
to such
terms in the Rights Agreement.
WHEREAS,
the Board of Directors of the Company (the “Board”)
has
resolved to amend the Rights Agreement to allow The Quercus Trust and Persons
who are Beneficial Owners through it to have a beneficial ownership percentage
of up to 20%, and also to exclude from beneficial ownership computations
when
determining whether a person has become an Acquiring Person those securities
which might otherwise be acquired by exercising a warrant but for a limitation
in such warrant which prevents such exercise to the extent it would cause
such
person to become an Acquiring Person, all pursuant to Section 27 of the Rights
Agreement.
NOW
THEREFORE, in consideration of the premises and mutual agreements contained
herein, the parties hereto agree as follows:
| 1. |
AMENDMENTS.
The Rights Agreement is amended as
follows:
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|
1.1
|
Section
1(a) is amended and restated in its entirety to read as follows:
|
“(a)
“Acquiring Person” shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of
15%
(except that such percentage shall be 20% for The Quercus Trust and Persons
who
are Beneficial Owners through it (Quercus, together with such Persons, the
“Quercus Owners”)) or more of the Common Shares of the Company, but shall not
include (i) the Company, any Subsidiary of the Company, any employee benefit
or
compensation plan of the Company or of any Subsidiary of the Company, or
any
Person holding Common Shares for or pursuant to the terms of any such plan
(each, an “Exempt Person”), (ii) any such Person who has become and is the
Beneficial Owner of 15% (or, in the case of the Quercus Owners, 20%) or more
of
the Common Shares of the Company solely as a result of (A) the acquisition
by
such Person or one or more of its Affiliates or Associates of Beneficial
Ownership of additional Common Shares if such acquisition was made in the
good
faith belief that such acquisition would not (x) cause the Beneficial Ownership
by such Person, together with its Affiliates and Associates, to be 15% (or,
in
the case of the Quercus Owners, 20%) or more of the Common Shares of the
Company
outstanding at the time of such acquisition and such good faith belief was
based
on the good faith reliance on information contained in publicly filed reports
or
documents of the Company that are inaccurate or out-of-date or (y) otherwise
cause a Distribution Date or the adjustment provided for in Section 11(a)
to
occur or (B) the acquisition by such Person or one or more of its Affiliates
or
Associates of Beneficial Ownership of additional Common Shares of the Company
if
the Board of Directors determines that such acquisition was made in good
faith
without the knowledge by such Person or Affiliates or Associates that such
Person would thereby become an Acquiring Person, which determination of the
Board of Directors shall be conclusive and binding on such Person, the Rights
Agent, the holders of the Rights and all other Persons or (iii) any such
Person
who has become and is the Beneficial Owner of 15% (or, in the case of the
Quercus Owners, 20%) or more of the Common Shares of the Company solely as
a
result of the operation of part (iii) of the definition of Beneficial Ownership
if, in the sole opinion of the Directors, the agreement, arrangement or
understanding that gives rise to the Beneficial Ownership was already extant
on
the date hereof, provided that Beneficial Ownership of no more than 5% of
the
Common Shares of the Company has been acquired by the parties to such agreement,
arrangement or understanding in the aggregate after the date hereof.
Notwithstanding the foregoing, if any Person that is not an Acquiring Person
due
to (ii)(A) or (ii)(B) of the prior sentence does not reduce its percentage
of
Beneficial Ownership of Common Shares of the Company to less than 15% (or,
in
the case of the Quercus Owners, 20%) by the Close of Business on the tenth
calendar day after notice from the Company (the date of notice being the
first
day) that such Person's Beneficial Ownership of Common Shares would make
it an
Acquiring Person, such Person shall, at the end of such ten calendar day
period,
become an Acquiring Person (and such clause (ii)(A) or (ii)(B) shall no longer
apply to such Person). For purposes of this definition, the determination
whether any Person acted in “good faith” shall be conclusively determined by the
Board of Directors. Notwithstanding anything in this definition of Acquiring
Person to the contrary, no Person shall become an “Acquiring Person” as the
result of an acquisition of Common Shares by the Company which, by reducing
the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 15% (or, in the case of the Quercus
Owners,
20%) or more of the Common Shares of the Company; provided, however, that
if a
Person shall become the Beneficial Owner of 15% (or, in the case of the Quercus
Owners, 20%) or more of the Common Shares of the Company by reason of share
acquisitions by the Company and shall, after such share acquisitions by the
Company, become the Beneficial owner of any additional Common Shares of the
Company (other than pursuant to a dividend or
distribution
paid or made by the Company on the
outstanding Common Shares or pursuant to a split or subdivision of the
outstanding Common Shares), then such Person shall be deemed to be an “Acquiring
Person” unless upon becoming the Beneficial Owner of such additional Common
Shares such Person does not beneficially own 15% (or, in the case of the
Quercus
Owners, 20%) or more of the Common Shares.”
|
1.2
|
Paragraph
(ii) of Section 1(d)
(whose preamble is “(d) A Person shall be deemed the “Beneficial Owner”
of, a Person’s “Beneficial Ownership” shall include and a Person shall be
deemed to “beneficially own” any securities:”)
is
amended and restated in its entirety to read as follows:
|
“(ii)
which such Person or any of such Person's Affiliates or Associates has (1)
the
right to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or understanding
(other than customary agreements with and between underwriters and selling
group
member with respect to a bona fide public offering of securities), or upon
the
exercise of conversion rights, exchange rights, rights (other than these
Rights), warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, (x)
securities tendered pursuant to a tender or exchange offer made by or on
behalf
of such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange or (y) securities
which might be otherwise be acquired through exercise of a warrant but for
a
limitation in such warrant or elsewhere that limits exercise to those securities
that would not (when added to those otherwise beneficially owned) cause the
holder to become an Acquiring Person; or (2) the right to vote, or the right
to
direct the vote, pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the Beneficial Owner
of, or
to beneficially own, any security, if the agreement, arrangement or
understanding to vote, or direct the vote of, such security (x) arises solely
from a revocable proxy or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act and (y)
is
not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or”
-2-
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1.3
|
The
second full paragraph of Exhibit C (which is entitled Summary of
Rights to
Purchase Preferred Shares) is amended and restated in its entirety
as
follows:
|
“Until
the earlier to occur of (i) 10 days following a public announcement that
a
person or group of affiliated or associated persons (with certain exceptions,
an
“Acquiring Person”) have acquired beneficial ownership of 15% (or, in the case
of the Quercus Owners, 20%) or more of the outstanding Common Shares or (ii)
such date, if any, as may be designated by the Board of Directors of the
Company
following the commencement of, or first public disclosure of an intention
to
commence, a tender or exchange offer for outstanding Common Shares which
could
result in such person or group becoming the beneficial owner of more than
15% of
the outstanding Common Shares (the earlier of such dates being the “Distribution
Date”), the Rights will not be represented by a separate certificate, and will
not be transferable apart from the Common Stock, but will instead be evidenced,
(i) with respect to any of the shares of Common Stock held in uncertificated
book-entry form (a “Book-Entry”) outstanding as of the Record Date, by such
Book-Entry and (ii) with respect to the shares of Common Stock evidenced
by
Common Stock certificates outstanding as of the Record Date, by such Common
Stock certificates, together with a copy of this Summary of
Rights.”
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2.
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Miscellaneous.
|
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2.1
|
No
Further Amendments.
Except as specifically amended hereby, the Rights Agreement shall
remain
unmodified and in full force and effect, and the Rights Agreement
is
hereby ratified and affirmed in all
respects.
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2.2
|
Governing
Law.
This Amendment No. 3 shall be governed by and construed in accordance
with
the laws of the State of Delaware.
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-3-
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2.3
|
Counterparts.
This Amendment No. 3 may be executed in any number of counterparts
and
each of such counterparts shall for all purposes be deemed to be
an
original, and all such counterparts shall together constitute but
one and
the same instrument.
|
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be
duly
executed and delivered on October 24, 2007.
| BEACON POWER CORPORATION | ||
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| By: | /s/ Xxxxx X. Xxxxxxx | |
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Name: Xxxxx X. Xxxxxxx |
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| Title: Chief Financial Officer | ||
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COMPUTERSHARE
TRUST COMPANY, N.A.
(fka
EQUISERVE
TRUST COMPANY, N.A.)
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| By: | /s/ Xxxxx Xxxxxx | |
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Name: Xxxxx Xxxxxx |
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Title:
Manager
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