Exhibit 10.6


 


BEACON POWER CORPORATION


 


RESTRICTED
STOCK UNIT AGREEMENT


 


This
Restricted Stock Unit Agreement (this “Agreement”), dated as of                        
(the “Effective Date”), is by and between
Beacon Power Corporation (the “Company”) and                        
(“Executive”), an executive officer of the
Company.


 


WHEREAS,
this Agreement is intended to provide Executive compensation in the form of
restricted stock units (or “RSUs”)
that convert into shares of the Company’s common stock, $0.01 par value per
share (the “Common Stock”);


 


NOW
THEREFORE, it is agreed as follows:


 


ARTICLE I.                                RESTRICTED
STOCK UNIT AWARD FOR FISCAL YEAR                        


 


1.1                               Restricted
Stock Unit Award.  Subject to the
terms and conditions of this Agreement and pursuant to the Company’s Third
Amended and Restated 1998 Stock Incentive Plan (the “Plan”), the Company will
be considered to have granted RSUs to Executive on June 30, 2010 (the “Grant Date”),  to be known as
the “                        Fiscal Year Award”, for a number of shares of Common Stock to
be determined by dividing $             
by the twelve (12) month VWAP immediately preceding the Grant Date (determined
by reference to the trading days within such twelve (12) month period), subject
to a               maximum share limit unless such share limit
is waived by the Board of Directors, and further subject to a               
minimum share limit.  The number of RSUs
granted hereby may be converted into that number of shares of Common Stock
equal to up to 150% of the RSUs granted hereby in accordance with Section 1.2
and Exhibit A.  The                         Fiscal Year
Award grant shall be contingent upon Executive being a full time
employee of the Company on the Grant Date.


 


“VWAP” means


 


(a) the daily dollar
volume-weighted average price for the Company’s common stock on the Nasdaq
Capital Market (“Nasdaq”) on any
particular day on which the Company’s common stock is traded on Nasdaq during
the period beginning at 9:30 a.m., New York City time (or such other time
as Nasdaq publicly announces is the official open of trading), and ending at
4:00 p.m., New York City time (or such other time as Nasdaq publicly
announces is the official close of trading), as reported by Bloomberg through
its “Volume at Price” functions or,


 


(b) if the foregoing
does not apply because the stock is no longer traded on Nasdaq on the above
grant date, the daily dollar volume-weighted average price of such security in
the over-the-counter market on the electronic bulletin board for such security
during the period beginning at 9:30 a.m., New York City time (or such
other time as Nasdaq publicly announces is the official open of trading), and
ending at 4:00 p.m., New York City time (or such other time as Nasdaq
publicly announces is the official close of trading), as reported by Bloomberg,
or,


 


(c) if no dollar
volume-weighted average price is reported for such security by Bloomberg for
such hours, the average of the highest closing bid price and the lowest closing
ask price of any of the market makers for such security as reported in the “pink
sheets” by Pink OTC Markets Inc.


 


1.2                               Target,
Vesting and Conversion.                The target, vesting and
conversion rules for the RSUs that are to be granted as the 2011/2012
Fiscal Year Award are set forth on Exhibit A hereto.


 


ARTICLE II.                            RESTRICTED STOCK UNIT AWARDS FOR FISCAL YEARS
                                


 


2.1                               Restricted Stock Unit
Awards.     Subject to the terms and
conditions of this Agreement and pursuant to the Plan, on June 30 of each of
                                     
provided that Executive is a full time employee of the Company as of the
applicable date, the Company shall
grant additional RSUs, hereinafter respectively known as the 


 

















 


“            Fiscal Year Award”, the “             Fiscal
Year Award” and the “             Fiscal
Year Award” (collectively, the “Anniversary
Awards” and together with the                  Fiscal Year
Award, the “Awards”) to Executive in an amount equal to the amount of Common Stock that can be
determined by dividing $               
by the twelve (12) month VWAP immediately preceding each applicable grant date,
in each case subject to an annual               
maximum share limit unless such share limit is waived by the Board of Directors
and further subject to an annual             
minimum share limit.


 


2.2                               Vesting and Conversion
to Common Stock.     Subject to the terms and
conditions of this Agreement and pursuant to the Plan, in connection with the
grant of each Anniversary Award, the Committee shall amend this Agreement by
attaching heretofore in a separate exhibit (namely, Exhibits B, C and D,
respectively) the fiscal year targets and measurement specifics for such award,
including the vesting conditions (the measurement of any financial metric to be
based on audited results, as applicable) and the applicable metrics for
converting vested RSUs into shares of Common Stock, as determined by the
Committee in its sole discretion.  Upon
consultation and discussion with the Executive, the content of each such
exhibit shall be established by the Committee for each annual Award and the
exhibit shall become effective upon delivery to Executive (i) no later
than March 31 of each year and (ii) in a manner intended to deliver a
long-term incentive opportunity substantially similar to the long-term
incentive opportunity represented by the 2011/2012 Fiscal Year Award.


 


ARTICLE III.                        TERMINATION OF EMPLOYMENT


 


3.1                               Termination
of Employment.   If Executive terminates his employment for any reason,
including by resignation, or if the Company terminates his employment for any
reason, Executive may retain all RSUs that have vested before the Termination
Notice Date (as defined below).  However,
he will not be entitled to receive and shall forfeit any interest in RSUs that might
vest only after the Termination Notice Date.   
As indicated earlier, RSUs will be considered to have vested at the end
of the applicable year even if the financial statements which confirm such
vesting are prepared (and even if the vested RSUs are converted into shares)
after the end of such year.


 


The “Termination
Notice Date” means the date on which Executive resigns (or if
earlier, the date on which Executive notifies Company that Executive will
resign), or the date on which Company terminates the employment (or if earlier,
the date on which the Company notifies Executive that employment will be so
terminated).


 


ARTICLE
IV.                       GENERAL PROVISIONS


 


4.1                               Acquisition Events. 
Upon the occurrence of an Acquisition Event (as defined below), or the
execution by the Company of any agreement with respect to an Acquisition Event,
the authorized administrator of the Plan shall take any one or more of the
following actions with respect to the RSUs, upon written notice to Executive:


 


(a) provide that this
Agreement shall be assumed, or equivalent equity compensation shall be
substituted, by the acquiring or succeeding corporation (or an affiliate
thereof); and


 


(b) provide that any
portion of the RSUs that have already been granted and that are not vested will
become accelerated in full and converted as of a specified time (the “Acceleration Time”) prior to the
Acquisition Event.


 


An “Acquisition Event” shall mean: (a) any
merger or consolidation which results in the voting securities of the Company
outstanding immediately prior thereto representing immediately thereafter
(either by remaining outstanding or by being converted into voting securities
of the surviving or acquiring entity) less than 50% of the combined voting
power of the voting securities of the Company or such surviving or acquiring
entity outstanding immediately after such merger or consolidation; (b) any
sale of all or substantially all of the assets of the Company; or (c) the
complete liquidation of the Company.


 


4.2                               Golden
Parachute Payment Excise Tax Protection.  In the event that the excise tax imposed by Section 4999
of the Code, (or any successor penalty or excise tax subsequently imposed by
law) applies to any payments or benefits specifically paid or conferred only
under this Agreement (the “Excise Tax”),
an additional amount shall be paid by the Company to the Executive equal to the
amount of such Excise Tax (the “Gross Up
Payment”); provided, 


 


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however in no event shall
the aggregate amount payable by the Company to Executive for any excise tax
imposed by Section 4999 of the Code pursuant to this Agreement and all
other agreements between the Company and Executive exceed $              .  The
Company and its advisers shall make the determination of the amount of the
Gross Up Payment which payment shall be made as soon as practicable but in no
event later than December 31 of the year following the year in which the
tax is due to the applicable taxing authority. 
 To the extent that the amount of
such Gross Up Payment exceeds the amount of Excise Tax actually paid by
Executive, Executive shall promptly pay to the Company such excess amount.


 


ARTICLE V.                           TRANSFERABILITY


 


5.1                               Nontransferability
of Agreement and RSUs.  This
Agreement and the RSUs may not be sold, assigned, transferred, pledged or
otherwise encumbered by Executive, either voluntarily or by operation of law,
except by will or the laws of descent and distribution.  Notwithstanding the foregoing, Executive’s
transfer to a revocable trust that is solely for the benefit of Executive and
Executive’s spouse and/or issue during Executive’s lifetime and transfer under
such trust at Executive’s death to the trust’s intended beneficiaries shall not
be deemed to be prohibited by the foregoing provisions.  If any person other than Executive, Executive’s
then current spouse, and Executive’s issue shall possess a vested interest in
such trust during the lifetime of Executive, such interest shall not be
recognized hereunder as giving such person any right to the benefit of any RSUs
or the shares of Common Stock issuable upon conversion thereof.  In such event the RSUs shall revest in
Executive as if such transfer in trust had not occurred.


 


5.2                               Holding
Period.  The
Executive (i) agrees that upon conversion of RSUs into shares of Common
Stock, shares representing fifty-percent (50%) of net after-tax value of RSUs,
shall be nontransferable for a two (2) year period commencing on the
Determination Date, and (ii) agrees and consents to the entry of stop transfer
restrictions with the Company’s transfer agent and registrar against, and
authorizes the Company to cause the transfer agent and registrar to decline the
transfer of the undersigned’s Company Common Stock for such period; provided,
however, that this Section 5.2 shall become inoperative upon an
Acquisition Event and any shares that have stop transfer restrictions on them
shall be released at such time.


 


ARTICLE VI.                       MISCELLANEOUS


 


6.1                               Provisions of the Plan.  This
Agreement is subject to the provisions of the Plan, a copy of which Executive
hereby acknowledges receiving with this Agreement.  In addition, the grant of Awards under this
Agreement shall be conditioned upon shareholder approval of the amended and
restated Plan (referred to as the 2010 Stock Incentive Plan in the proxy
statement for the annual meeting now scheduled for July 2010).


 


6.2                               No Right to Continued
Employment.  This Agreement shall not confer upon
Executive any right with respect to continuance of employment by the Company,
nor shall it interfere in any way with the right of the Company to terminate
Executive’s employment at any time.


 


6.3                               No
Right as Stockholder. 
Executive shall not be entitled to vote any shares of Common Stock that
may be acquired through
conversion of RSUs to Common Stock, shall not receive any dividends attributed
to such shares of Common Stock, and shall have no other rights of a stockholder
with respect to the RSUs unless and until the Common Stock issuable upon
conversion of the RSUs has been delivered to Executive.


 


6.4                               Compliance with Law and
Regulations.  This Agreement and the obligation of the
Company to issue, sell and deliver shares of Common Stock hereunder shall be
subject to all applicable federal and state laws, rules and regulations
and to such approvals by any government or regulatory agency as may be
required.  The Company shall not be
required to issue or deliver any certificates for Shares or to remove
restrictions from shares of Common Stock previously delivered until (a) the
listing of such Shares on any stock exchange on which the Shares may then be
listed, (b) all conditions have been met or removed to the satisfaction of
the Company, (c) in the opinion of the Company’s counsel, all other legal
matters in connection with the issuance and delivery of such shares have been
satisfied, including any applicable securities laws and any applicable stock
exchange or stock market rules and regulations, (d) Executive has
executed and delivered to the Company such representations or agreements as the
Company may consider appropriate to satisfy the requirements of any applicable
laws, rules or regulations and (e) the completion of any registration
or qualification of such Shares under any federal or state law, or any rule or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or 


 


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advisable.  Moreover, the RSUs may not be exercised or
converted to Common Stock if its exercise or conversion, or the receipt of
Shares pursuant thereto, would be contrary to applicable law.


 


6.5                               Adjustment  to Common Stock.  In the event of any stock split, stock
dividend, recapitalization, reorganization, merger, consolidation, combination,
exchange of shares, liquidation, spin-off or other similar change in
capitalization or event, or any distribution to holders of Common Stock other
than a normal cash dividend, the number and class of securities each RSU shall
be convertible into under this Agreement shall be appropriately adjusted by
Company to the extent the authorized administrator of the Plan shall determine,
in good faith, that such an adjustment  is necessary
and appropriate.


 


6.6                               Withholding.  Executive shall pay to Company, or make
provision satisfactory to Company for payment of, any taxes required  by law to be withheld in connection with this Agreement no
later than the conversion date upon which Company vests or converts RSUs for Executive.  Executive may satisfy such tax obligations by
delivering to Company cash in the form of wire transfer or check or by electing
to have the Company withhold at conversion a number of shares equal in value to
the applicable statutory minimum withholding obligation, calculated based on
the Fair Market Value of such shares on the date of conversion, and Company
may, to the extent permitted by law, deduct any such tax obligations from any
payment of any kind otherwise due to Executive.


 


6.7                               Common
Stock Reserved.  Company shall at all times during the term of
this Agreement reserve and keep available such number of shares of Common Stock
as will be sufficient to satisfy the requirements of this Agreement.


 


6.8                               Notices. 
Any notice hereunder to the Company shall be addressed to Beacon Power
Corporation, Attn: Compensation Committee, 65 Middlesex Road, Tyngsboro, MA
01879, and any notice hereunder to Executive shall be sent to the address
reflected on the payroll records of the Company, subject to the right of either
party to designate at any time hereafter in writing some other address.


 


6.9                               Delaware Law to Govern.  This Agreement
shall be construed and administered in accordance with and governed by the laws
of the State of Delaware (without giving effect to any conflict or choice of
laws provisions thereof that would cause the application of the domestic
substantive laws of any other jurisdiction).


 


6.10                        Certain Special Rules. 
To the extent that this Agreement and the grant of the RSUs become
subject to the provisions of Section 409A of the Code, the Company and
Executive agree that the RSUs may be amended, modified, rescinded or
substituted by the Company with an award of comparable economic value as
required to maintain compliance with the provisions of Section 409A of the
Code.


 


6.11                        Amendment of
Agreement.  Company may amend, modify  or
terminate this Agreement, provided that Executive’s consent to such action shall be required unless
Company determines that the action, taking into account any related action,
would not materially and adversely affect Executive.


 


6.12                        Successors
and Assigns; No Third Party Beneficiaries.  Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors,
assigns, heirs, executors and administrators of the parties hereto.  There are no third party beneficiaries of
this Agreement.


 


6.13                        Entire
Agreement.  This
Agreement and the Plan constitute the full and entire understanding and
agreement of the parties with regard to the RSUs and supersede in their
entirety all other prior agreements, whether oral or written, with respect
thereto.


 


6.14                        Severability;
Titles and Subtitles; Gender; Singular and Plural; Counterparts; Facsimile.


 


(a)                                  In case any
provision of this Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby.


 


(b)                                 The titles of
the sections and subsections of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement.


 


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(c)                                  The use of any
gender in this Agreement shall be deemed to include the other genders, and the
use of the singular in this Agreement shall be deemed to include the plural (and
vice versa), wherever appropriate.


 


(d)                                 This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which together constitute one instrument.


 


(e)                                  Counterparts of
this Agreement (or applicable signature pages hereof) that are manually
signed and delivered by facsimile transmission shall be deemed to constitute
signed original counterparts hereof and shall bind the parties signing and
delivering in such manner.


 


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IN
WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the Effective Date.


 


	
  EXECUTIVE:

  	
  BEACON
  POWER CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
  /s/ 

  
	
  Signature

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name:  

  	
  Name:  

  
	
  Address:

  	
  Title: