Exhibit 10.1
FIRST AMENDMENT TO
COMMON STOCK PURCHASE
AGREEMENT
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
WHEREAS, the
parties now desire to modify the timing of the Closings pursuant to
the Agreement and certain other provisions of the Agreement, as
more specifically set forth below, while retaining the aggregate
maximum of $18,000,000 of shares to be purchased and
sold;
NOW, THEREFORE, in consideration of the mutual
covenants contained in this Agreement, and for other good and
valuable consideration the receipt and adequacy of which are hereby
acknowledged, the Company and Seaside agree as follows:
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 5 th and 20 th 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 i
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