February 12, 2007 Beacon Power Corporation Wilmington, Massachusetts 01887 Ladies and Gentlemen:
February
12, 2007
Beacon
Power Corporation
000
Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Ladies
and Gentlemen:
The
undersigned (hereinafter, the “Investor”), hereby confirms and agrees with you
as follows:
1. This
Purchase Agreement (the “Agreement”) is made as the date hereof between Beacon
Power Corporation, a Delaware corporation (the “Company”), and the
Investor.
2. The
Company has authorized the sale and issuance of up to 11,814,688 units (the
“Units”), each of which consists of one share of common stock, par value $0.01
per share (the “Common Stock”), and a warrant (the “Warrants”) to purchase 0.5
shares of Common Stock at an exercise price of $1.33 per share, to certain
investors (the “Offering”), as more fully described in the Placement Agency
Agreement (the “Placement Agency Agreement”) dated the date hereof by and
between the Company and Xxxxxxxx Curhan Ford & Co. (the “Placement Agent”),
and the Company’s Free Writing Prospectus (the “Free Writing Prospectus”) dated
December 28, 2006. A copy of each of the Placement Agency Agreement and the
Free
Writing Prospectus has been furnished to the Investor. All defined terms
used
herein and not otherwise defined shall have the same meanings ascribed to
such
terms in the Placement Agency Agreement.
3. Subject
to execution by the Company and the Placement Agent of the Placement Agency
Agreement and delivery of the base prospectus relating to the Units and the
Free
Writing Prospectus, the Company and the Investor agree that the Investor
will
purchase from the Company, and the Company will issue and sell to the Investor,
the number of Units set forth on the signature page hereto, at the purchase
price of $0.90 per Unit, pursuant to the Terms and Conditions for Purchase
of
the Units attached hereto as Annex I and incorporated herein by reference
as if
fully set forth herein. The Investor acknowledges that the Offering is not
being
underwritten by the Placement Agent and that there is no minimum offering
amount. Shares of Common Stock will be credited to the Investor using customary
book-entry procedures.
4. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company and (b) it
is not
a, and it has no direct or indirect affiliation or association with any,
NASD
member as of the date hereof.
5. The
Investor confirms that it had full access to all filings made by the Company
with the Securities and Exchange Commission, including the registration
statement relating to the Units, and that it was able to read, review, download
and print each such filing.
Please
confirm that the foregoing correctly sets forth the agreement between us
by
signing in the space provided below for that purpose.
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AGREED
AND ACCEPTED:
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Name
of Investor:
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___________________________
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By:
________________________
Name:
Title:
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Address
of Investor:
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___________________________
___________________________
___________________________
___________________________
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Number
of Units to
be
Purchased
by
the
Investor
in the
Offering:
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___________________________
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Purchase
Price per Unit:
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___________________________
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Total
Purchase Price:
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___________________________
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ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF THE UNITS
1. Agreement
to Sell and Purchase the Units; Subscription Date.
1.1 Upon
the
terms and subject to the conditions hereinafter set forth, at the Closing
(as
defined in Section 2 below), the Company will sell to the Investor, and the
Investor will purchase from the Company, the number of Units set forth on
the
signature page of this Agreement, at the purchase price set forth
herein.
1.2 The
Company may enter into agreements similar to this Agreement with certain
other
investors (the “Other Investors”) and expects to complete sales of the Units to
them. (The Investor and the Other Investors hereinafter collectively are
referred to as the “Investors,” and this Agreement and the agreements executed
by the Other Investors are hereinafter collectively referred to as the
“Agreements”). The Company may accept or reject any one or more Agreements in
its sole discretion.
2. Delivery
of the Units at Closing.
The
completion of the purchase and sale of the Units (the “Closing”) shall take
place as provided in Section 2 of the Placement Agency Agreement.
The
Company’s obligation to issue and sell the Units to the Investor shall be
subject to the accuracy of the representations and warranties made by the
Investor and the fulfillment of those undertakings of the Investor to be
fulfilled prior to the Closing.
The
Investor’s obligation to purchase the Units shall be subject to the conditions
that (a) the Placement Agent shall not have terminated the Placement Agency
Agreement pursuant to the terms thereof and (b) the conditions to closing
in the
Placement Agency Agreement shall have been satisfied or waived.
3. Representations,
Warranties and Covenants of the Company.
The
Company hereby represents and warrants to, and covenants with, the Investor,
as
follows:
3.1 The
Company acknowledges and agrees that each Investor may rely on the
representations and warranties made by it to the Placement Agent in Section
3 of
the Placement Agency Agreement to the same extent as if such representations
and
warranties had been incorporated in full herein and made directly to the
Investor.
3.2 This
Agreement constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as enforceability
may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or
similar laws affecting creditors’ and contracting parties’ rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in
equity or at law).
4. Representations,
Warranties and Covenants of the Investor.
4.1 The
Investor represents and warrants that it has received the Company’s base
prospectus relating to the Units and the Free Writing Prospectus.
4.2 The
Investor further represents and warrants to, and covenants with, the Company
that (i) such Investor has full right, power, authority and capacity to enter
into this Agreement and to consummate the transactions contemplated hereby
and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement, and (ii) this Agreement constitutes a valid
and
binding obligation of such Investor enforceable against such Investor in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors’ and contracting parties’ rights generally and except as
enforceability may be subject to general principles of equity (regardless
of
whether such enforceability is considered in a proceeding in equity or at
law).
4.3 The
Investor represents and warrants to, and covenants with, the Company that:
(i)
the Investor is knowledgeable, sophisticated and experienced in making, and
is
qualified to make, decisions with respect to investments in shares representing
an investment decision like that involved in the purchase of the Units; and
(ii)
the Investor has, in connection with its decision to purchase the number
of
Units set forth on the signature page of this Agreement, relied solely upon
the
registration statement, any amendments or supplements thereto and the Free
Writing Prospectus and has not relied upon any information provided by Xxxxxxxx
Curhan Ford & Co. in its capacity as Placement Agent for the Company.
4.4 The
Investor understands that nothing in the prospectus and any supplement thereto,
this Agreement or any other materials presented to such Investor in connection
with the purchase and sale of the Units constitutes legal, tax or investment
advice. Such Investor has consulted such legal, tax and investment advisors
as
it, in its sole discretion, has deemed necessary or appropriate in connection
with its purchase of the Units.
4.5 From
and
after obtaining knowledge of the sale of the Units contemplated hereby, such
Investor has not taken, and prior to the public announcement of the transaction
such Investor shall not take, any action that has caused or will cause such
Investor to have, directly or indirectly, sold or agreed to sell any Units,
Common Stock or Warrants, effected any short sale, whether or not against
the
box, established any “put equivalent position” (as defined in Rule 16a-1(h)
under the Securities Exchange Act of 1934, as amended) with respect to the
Units, the Common Stock or the Warrants, granted any other right (including,
without limitation, any put or call option) with respect to the Units, the
Common Stock or the Warrants, or with respect to any security that includes,
relates to or derives any significant part of its value from the Units, the
Common Stock or the Warrants, whether or not, directly or indirectly, in
order
to hedge its position in the Units.
5. Survival
of Representations, Warranties and Agreements.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company
and
the Investor herein shall survive the execution of this Agreement, the delivery
to such Investor of the Units being purchased and the payment
therefor.
6. Notices.
All
notices, requests, consents and other communications hereunder shall be in
writing, shall be mailed (A) if within domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if delivered from outside
the
United States, by International Federal Express or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by a nationally
recognized overnight carrier, one business day after so mailed, (iii) if
delivered by International Federal Express, two business days after so mailed,
(iv) if delivered by facsimile, upon electronic confirmation of receipt and
shall be delivered as addressed as follows: (a) if to the Company, then as
provided in Section 11 of the Placement Agency Agreement; and (b) if to an
Investor, at its address set forth on the signature page of this Agreement,
or
at such other address or addresses as may have been furnished to the Company
in
writing.
7. Changes.
This
Agreement may not be modified or amended except pursuant to an instrument
in
writing signed by the Company and the Investor.
8. Headings.
The
headings of the various sections of this Agreement have been inserted for
convenience or reference only and shall not be deemed to be part of this
Agreement.
9. Severability.
In case
any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
10. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law.
11. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
one instrument, and shall become effective when one or more counterparts
have
been signed by each party hereto and delivered to the other
parties.
