Exhibit 4.2


 


BEACON POWER CORPORATION


FORM OF


ADDITIONAL INVESTOR RIGHTS


WARRANT TO PURCHASE COMMON STOCK


 


Warrant No.:      


Number of Shares of Common Stock:        


Date
of Issuance:
                        ,
2009 (“Issuance Date”)


 


Beacon Power Corporation, a
Delaware corporation (the “Company”),
hereby certifies that, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,
                                                ,
the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms
set forth below, to purchase from the Company, at the Exercise Price (as
defined below) then in effect, upon surrender of this Additional Investor
Rights Warrant to Purchase Common Stock (including any Warrants to Purchase
Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”), at any time or times on or after
the date hereof (the “Exercisability Date”),
but not after 11:59 p.m., New York time, on the Expiration Date (as
defined below),
                          
(                  )(1) fully
paid nonassessable shares of Common Stock (as defined below)  (the “Warrant
Shares”).  Except as otherwise
defined herein, capitalized terms in this Warrant shall have the meanings set
forth in Section 14.  This
Warrant is the Additional Investor Rights Warrant to purchase Common Stock
issued pursuant to (i) the Company’s prospectus supplement dated December
4, 2009 (the “Prospectus”) and (ii) the
Company’s Registration Statement on Form S-3 (File number 333-161648) (the
“Registration Statement”).


 


1.     EXERCISE OF WARRANT.


 


(a)   Mechanics of Exercise. 
Subject to the terms and conditions hereof (including, without
limitation, the limitations set forth in Section 1(h)), this
Warrant may be exercised by the Holder on any day on or after the
Exercisability Date, in whole or in part, by (i) delivery of a written
notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election
to exercise this Warrant and (ii) (A) payment to the Company of an
amount equal to the applicable Exercise Price multiplied by the number of
Warrant Shares as to which this Warrant is being exercised (the “Aggregate Exercise Price”) in cash or by
wire transfer of immediately available funds or (B) provided the
conditions for cashless exercise set forth in Section 1(d) are
satisfied, by notifying the Company that this Warrant is being exercised
pursuant to a Cashless Exercise (as defined in Section 1(d)).  The Holder shall not be required to deliver
the original Warrant in order to effect an exercise hereunder.  Execution and delivery of the Exercise Notice
with respect to less than all of the Warrant Shares shall have the same effect
as cancellation of the original Warrant and issuance of a new Warrant
evidencing the right to purchase the remaining number of Warrant Shares.  On or before the first (1st) Business Day following the
date on which the Company has received each of the Exercise Notice and the 


 










(1)           Insert a number equal to 50% of the number of shares of
Common Stock to be purchased by Holder.


 





















 


Aggregate Exercise Price (or
notice of a Cashless Exercise) (the “Exercise
Delivery Documents”), the Company shall transmit by facsimile an
acknowledgment of confirmation of receipt of the Exercise Delivery Documents to
the Holder and the Company’s transfer agent (the “Transfer Agent”).  On or
before the third (3rd) Business Day
following the date on which the Company has received all of the Exercise
Delivery Documents (the “Share Delivery Date”),
the Company shall (X) provided that the Transfer Agent is participating in
The Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program, upon the request of the Holder,
credit such aggregate number of Warrant Shares to which the Holder is entitled
pursuant to such exercise to the Holder’s or its designee’s balance account
with DTC through its Deposit Withdrawal at Custodian system, or (Y) if the
Transfer Agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and dispatch by overnight courier to the address as
specified in the Exercise Notice, a certificate, registered in the Company’s
share register in the name of the Holder or its designee, for the number of
shares of Common Stock to which the Holder is entitled pursuant to such
exercise.  Upon delivery of the Exercise
Delivery Documents, the Holder shall be deemed for all corporate purposes to
have become the holder of record of the Warrant Shares with respect to which
this Warrant has been exercised, irrespective of the date such Warrant Shares
are credited to the Holder’s DTC account or the date of delivery of the
certificates evidencing such Warrant Shares, as the case may be.  If this Warrant is submitted in connection
with any exercise pursuant to this Section 1(a) and the number
of Warrant Shares represented by this Warrant submitted for exercise is greater
than the number of Warrant Shares being acquired upon an exercise, then the
Company shall as soon as practicable and in no event later than three Business
Days after any exercise and at its own expense, issue a new Warrant (in
accordance with Section 7(d)) representing the right to purchase
the number of Warrant Shares purchasable immediately prior to such exercise
under this Warrant, less the number of Warrant Shares with respect to which
this Warrant is exercised.  No fractional
shares of Common Stock are to be issued upon the exercise of this Warrant, but
rather the number of shares of Common Stock to be issued shall be rounded up to
the nearest whole number.  The Company
shall pay any and all taxes which may be payable with respect to the issuance
and delivery of Warrant Shares upon exercise of this Warrant.


 


(b)   Exercise Price.  For
purposes of this Warrant, “Exercise Price”
means an amount equal to the VWAP of the Common Stock measured in hundredths of
cents over the five (5) consecutive Trading Days immediately prior to the
date this Warrant is exercised multiplied by eighty-five percent (85%), subject
to adjustment as provided herein; provided, however, that in no event shall the
Exercise Price be less than $0.272.  For
the duration of this Warrant, the Company will post the current Exercise Price
of this Warrant on its corporate website, updated daily.


 


(c)   Company’s Failure to Timely Deliver Securities.  If the Company shall fail for any reason or
for no reason to issue to the Holder within three (3) Business Days (such
third Business Day, a “Warrant Share Delivery
Date”) of receipt of the Exercise Delivery Documents in compliance
with the terms of this Section 1, a certificate for the number of
shares of Common Stock to which the Holder is entitled and register such shares
of Common Stock on the Company’s share register or to credit the Holder’s
balance account with DTC for such number of shares of Common Stock to which the
Holder is entitled upon the Holder’s exercise of this Warrant, and if on or
after such Warrant Share Delivery Date the Holder purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of
a sale by 


 

















 


the Holder of shares of
Common Stock issuable upon such exercise that the Holder anticipated receiving
from the Company (a “Buy-In”),
then the Company shall, within three (3) Business Days after the Holder’s
request and in the Holder’s discretion, either (i) pay cash to the Holder
in an amount equal to the Holder’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s
obligation to deliver such certificate (and to issue such Warrant Shares) shall
terminate, or (ii) promptly honor its obligation to deliver to the Holder
a certificate or certificates representing such Warrant Shares and pay cash to
the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of shares of Common Stock, times (B) the
Closing Bid Price on the date of exercise.


 


(d)   Cashless Exercise.  Notwithstanding anything contained
herein to the contrary, but subject to Section 1(h), if a
registration statement covering the Warrant Shares that are the subject of the
Exercise Notice (the “Unavailable Warrant
Shares”), or an exemption from registration, is not available for
the resale of such Unavailable Warrant Shares, the Holder may, in its sole
discretion, exercise this Warrant in whole or in part and, in lieu of making
the cash payment otherwise contemplated to be made to the Company upon such
exercise in payment of the Aggregate Exercise Price, elect instead to receive
upon such exercise the “Net Number” of shares of Common Stock determined
according to the following formula (a “Cashless
Exercise”):


 


Net Number = (A x B) - (A
x C)


 


B


 


For purposes of the
foregoing formula:


 


A= the total number of shares with respect to which
this Warrant is then being exercised.


 


B= the VWAP of the Common Stock on the Trading Day
immediately preceding the date of the Exercise Notice.


 


C= the Exercise Price then in effect for the
applicable Warrant Shares at the time of such exercise.


 


(e)   Company-Elected Conversion.  (i) The
Company shall provide to the Holder prompt written notice of any time that the
Company is unable to issue the Warrant Shares via DTC transfer (or otherwise
without restrictive legend), because (A) the Securities and Exchange
Commission (the “Commission”) has
issued a stop order with respect to the Registration Statement, (B) the
Commission otherwise has suspended or withdrawn the effectiveness of the
Registration Statement, either temporarily or permanently or (C) the
Company has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently (each a “Restrictive Legend Event”).  To the extent that a Restrictive Legend Event
occurs after the Holder has exercised this Warrant in accordance with Section 1(a) but
prior to the delivery of the Warrant Shares, (i) the Company shall (A) if
the VWAP of the Common Stock on the Trading Day immediately preceding the date
of the 


 

















 


Exercise Notice is greater
than the Exercise Price, provide written notice to the Holder that the Company
will deliver that number of Warrant Shares to the Holder as should be delivered
in a Cashless Exercise in accordance with Section 1(d), and return
to the Holder all consideration paid to the Company in connection with the
Holder’s attempted exercise of this Warrant pursuant to Section 1(a) (a
“Company-Elected Conversion”), or (B) at
the election of the Holder to be given within five (5) days of receipt of
notice of a Company-Elected Conversion, the Holder shall be entitled to rescind
the previously submitted Notice of Exercise and the Company shall return all
consideration paid by Holder for such shares upon such rescission; and (ii) for
purposes of applying Section 1(c), notwithstanding anything else
therein, the “Warrant Share Delivery Date”
shall be deemed to refer to the third (3rd) Business Day following the earlier of (1) the
expiration of such five day period without the Holder having elected rescission
or (2) the third (3rd) Business Day
following the Holder’s notification to the Company of its acceptance of the
Company-Elected Conversion, and such section shall not apply in the event that
the Holder elects to rescind its Notice of Exercise.


 


(ii)           If a Restrictive Legend Event has occurred and no
exemption from the registration requirements is available (including, without
limitation, under Section 3(a)(9) of the Securities Act by virtue of
a Cashless Exercise), this Warrant shall not be exercisable.  Notwithstanding anything herein to the contrary,
the Company shall not be required to make any cash payments to the Holder in
lieu of issuance of the Warrant Shares. 
The Company shall give prompt written notice to the Holder of any
cessation of a Restrictive Legend Event (the “Re-Effectiveness
Notice”).  Notwithstanding
anything to the contrary contained herein, the Expiration Date of this Warrant
shall be extended for a period of five (5) days following receipt by the
Holder of the Re-Effectiveness Notice.


 


(f)    Rule 144.  For
purposes of Rule 144(d) promulgated under the Securities Act, as in
effect on the date hereof, it is intended that the Warrant Shares issued in a
Cashless Exercise shall be deemed to have been acquired by the Holder, and the
holding period for the Warrant Shares shall be deemed to have commenced, on the
date this Warrant was originally issued pursuant to the Prospectus.


 


(g)   Disputes.  In the
case of a dispute as to the determination of the Exercise Price or the
arithmetic calculation of the Warrant Shares, the Company shall promptly issue
to the Holder the number of Warrant Shares that are not disputed.


 


(h)   Limitations on Exercises. 
Any exercise of this Warrant must be in compliance with this Section 1(h) and
any Exercise Notice must be accompanied by a certificate of the holder
certifying the number of shares of Common Stock owned by the holder and a
detailed computation of the number of shares of Common Stock the holder is
entitled to acquire by exercise or conversion of any security or instrument
without regard to any time, cap or other limitation on such exercise or
conversion.  The Company shall have no
obligation to issue shares of Common Stock upon exercise hereof to the extent
that it believes in good faith that such issuance would not be in compliance
with this Section 1(h).


 


(i)    No exercise that exceeds 9.99% Beneficial
Ownership.  The Company shall not
effect the exercise of this Warrant, and the Holder shall not have the right to
exercise this Warrant, to the extent that after giving effect to such exercise,
such Holder (together with 


 

















 


such Holder’s affiliates)
would beneficially own in excess of 9.99% of the shares of Common Stock
outstanding immediately after giving effect to such exercise.  For purposes of the foregoing sentence, the
aggregate number of shares of Common Stock beneficially owned by such Holder
and its affiliates shall include the number of shares of Common Stock issuable
upon exercise of this Warrant with respect to which the determination of such
sentence is being made, but shall exclude shares of Common Stock which would be
issuable upon (i) exercise of the remaining, unexercised portion of this
Warrant beneficially owned by such Person and its affiliates and (ii) exercise
or conversion of the unexercised or unconverted portion of any other securities
of the Company beneficially owned by such Person and its affiliates (including,
without limitation, any convertible notes or convertible preferred stock or
warrants) subject to a limitation on conversion or exercise analogous to the
limitation contained herein.  Except as
set forth in the preceding sentence, for purposes of this paragraph, beneficial
ownership shall be calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended. 
For purposes of this Warrant, in determining the number of outstanding
shares of Common Stock, the Holder may rely on the number of outstanding shares
of Common Stock as reflected in (1) the Company’s most recent Form 10-K,
Form 10-Q, Current Report on Form 8-K or other public filing with the
Securities and Exchange Commission, as the case may be, (2) a more recent
public announcement by the Company or (3) any other notice by the Company
or the Transfer Agent setting forth the number of shares of Common Stock
outstanding.  For any reason at any time,
upon the written or oral request of the Holder, the Company shall within one
Business Day confirm orally and in writing to the Holder the number of shares
of Common Stock then outstanding.  In any
case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company,
including this Warrant, by the Holder and its affiliates since the date as of
which such number of outstanding shares of Common Stock was reported.


 


(j)    No Exercise That Triggers Rights
Agreement.   This Warrant may not be
exercised to acquire securities to the extent that when added to those already
beneficially owned by such holder for purposes of the Rights Agreement between
the Company and Computershare Trust Company N.A., dated as of September 25,
2002 and as amended from time to time (as so amended, the “Rights Agreement”) such securities would
cause such holder to become an Acquiring Person as that term is used in the
Rights Agreement with respect to that holder.


 


2.     ADJUSTMENT OF EXERCISE PRICE AND NUMBER
OF WARRANT SHARES.  The Exercise
Price and the number of Warrant Shares shall be adjusted from time to time as
follows:


 


(a)   Adjustment upon Subdivision or Combination of Common Stock.  If the Company at any time on or after the
Issuance Date subdivides (by any stock split, stock dividend, recapitalization,
reorganization, scheme, arrangement or otherwise) one or more classes of its
outstanding shares of Common Stock into a greater number of shares, the
Exercise Price in effect immediately prior to such subdivision will be
proportionately reduced and the number of Warrant Shares will be
proportionately increased.  If the
Company at any time on or after the Issuance Date combines (by any stock split,
stock dividend, recapitalization, reorganization, scheme, arrangement or
otherwise) one or more classes of its outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price in effect immediately prior 


 

















 


to such combination will be
proportionately increased and the number of Warrant Shares will be
proportionately decreased.  Any
adjustment under this Section 2(a) shall become effective at
the close of business on the date the subdivision or combination becomes
effective.


 


(b)   Other Events.  If any
event occurs of the type contemplated by the provisions of this Section 2
but not expressly provided for by such provisions (including, without
limitation, the granting of stock appreciation rights, phantom stock rights or
other rights with equity features), then the Company’s Board of Directors will
make an appropriate adjustment in the Exercise Price and the number of Warrant
Shares so as to protect the rights of the Holder; provided that no such
adjustment pursuant to this Section 2(b) will increase the
Exercise Price or decrease the number of Warrant Shares as otherwise determined
pursuant to this Section 2.


 


3.     RIGHTS UPON DISTRIBUTION OF ASSETS.  If the Company shall declare or make any
dividend or other distribution of its assets (or rights to acquire its assets)
to holders of shares of Common Stock, by way of return of capital or otherwise
(including, without limitation, any distribution of cash, stock or other
securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a
“Distribution”), at any time after
the issuance of this Warrant, then, in each such case:


 


(a)   any Exercise Price in effect immediately prior to the close of
business on the record date fixed for the determination of holders of shares of
Common Stock entitled to receive the Distribution shall be reduced, effective
as of the close of business on such record date, to a price determined by
multiplying such Exercise Price by a fraction of which (i) the numerator
shall be the Closing Bid Price of the shares of Common Stock on the Trading Day
immediately preceding such record date minus the value of the Distribution (as
determined in good faith by the Company’s Board of Directors) applicable to one
share of Common Stock, and (ii) the denominator shall be the Closing Bid
Price of the shares of Common Stock on the Trading Day immediately preceding
such record date; and


 


(b)   the number of Warrant Shares shall be increased to a number of
shares equal to the number of shares of Common Stock obtainable immediately
prior to the close of business on the record date fixed for the determination
of holders of shares of Common Stock entitled to receive the Distribution
multiplied by the reciprocal of the fraction set forth in the immediately
preceding paragraph (a); provided that in the event that the Distribution is of
shares of Common Stock (or common stock) (“Other
Shares of Common Stock”) of a company whose common shares are traded
on a national securities exchange or a national automated quotation system,
then the Holder may elect to receive a warrant to purchase Other Shares of
Common Stock in lieu of an increase in the number of Warrant Shares, the terms
of which shall be identical to those of this Warrant, except that such warrant
shall be exercisable into the number of shares of Other Shares of Common Stock
that would have been payable to the Holder pursuant to the Distribution had the
Holder exercised this Warrant immediately prior to such record date and with an
aggregate exercise price equal to the product of the amount by which the
exercise price of this Warrant was decreased with respect to the Distribution
pursuant to the terms of the immediately preceding paragraph (a) and the
number of Warrant Shares calculated in accordance with the first part of this
paragraph (b).


 

















 


4.     PURCHASE RIGHTS; FUNDAMENTAL
TRANSACTIONS.


 


(a)   Purchase Rights.  In
addition to any adjustments pursuant to Section 2 above, if at any
time the Company grants, issues or sells any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property pro rata to
the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be
entitled to acquire, upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which the Holder could have acquired if the Holder
had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on the exercise of this
Warrant) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the
date as of which the record holders of shares of Common Stock are to be
determined for the grant, issue or sale of such Purchase Rights.


 


(b)   Fundamental Transactions; Parent Entities.  The
Company shall not enter into or be party to a Fundamental Transaction unless
the Successor Entity assumes in writing all of the obligations of the Company
under this Warrant pursuant to written agreements in form and substance
reasonably satisfactory to the Holder, including agreements to deliver to each
holder of Warrants in exchange for
such Warrants a written
instrument issued by the Successor Entity substantially similar in form and
substance to this Warrant
exercisable for the consideration that would have been issuable in the
Fundamental Transaction in respect of the Warrant Shares had this Warrant been
exercised immediately prior to the consummation of the Fundamental Transaction.
 The provisions of this Section 4(b) shall
apply similarly and equally to successive Fundamental Transactions and shall be
applied without regard to any limitations on the exercise of this Warrant.


 


Notwithstanding the foregoing, in the event of a Change of Control
other than one in which a Successor Entity that is a publicly traded
corporation whose stock is quoted or listed for trading on an Eligible Market
assumes this Warrant such that the Warrant shall be exercisable for the
publicly traded Common Stock of such Successor Entity, then at the request of
the Holder delivered before the 90th day after such Fundamental Transaction,
the Company (or the Successor Entity) shall purchase this Warrant from the
Holder by paying to the Holder, within five Business Days after such request
(or, if later, on the effective date of the Fundamental Transaction), cash in
an amount equal to the Black Scholes Value of the remaining unexercised portion
of this Warrant on the date of such Fundamental Transaction.


 


In the event that any person becomes a Parent Entity of the Company,
such person shall assume all of the obligations of the Company under this
Warrant with the same effect as if such person had been named as the Company
herein.


 


5.     NONCIRCUMVENTION.  The Company hereby covenants and agrees that
the Company will not, by amendment of its Certificate of Incorporation, Bylaws
or through any reorganization, transfer of assets, consolidation, merger,
scheme of arrangement, dissolution, issue or sale of securities, or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms of this Warrant, and will at all times in good faith carry out all
the provisions of this Warrant and take all action as may be required to
protect the rights of the Holder. 
Without limiting the generality of the foregoing, the Company (i) shall
not increase the 


 

















 


par
value of any shares of Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, (ii) shall take all such
actions as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock
upon the exercise of this Warrant, and (iii) shall, so long as this
Warrant is outstanding, take all action necessary to reserve and keep available
out of its authorized and unissued shares of Common Stock, solely for the
purpose of effecting the exercise of this Warrant, 100% of the number of shares
of Common Stock issuable upon exercise of this Warrant then outstanding
(without regard to any limitations on exercise).


 


6.     WARRANT HOLDER NOT DEEMED A STOCKHOLDER.  Except as otherwise specifically provided
herein, the Holder, solely in such Person’s capacity as a holder of this
Warrant, shall not be entitled to vote or receive dividends or be deemed the
holder of share capital of the Company for any purpose, nor shall anything
contained in this Warrant be construed to confer upon the Holder, solely in such
Person’s capacity as the Holder of this Warrant, any of the rights of a
stockholder of the Company or any right to vote, give or withhold consent to
any corporate action (whether any reorganization, issue of stock,
reclassification of stock, consolidation, merger, conveyance or otherwise),
receive notice of meetings, receive dividends or subscription rights, or
otherwise, prior to the issuance to the Holder of the Warrant Shares which such
Person is then entitled to receive upon the due exercise of this Warrant.  In addition, nothing contained in this
Warrant shall be construed as imposing any liabilities on the Holder to
purchase any securities (upon exercise of this Warrant or otherwise) or as a
stockholder of the Company, whether such liabilities are asserted by the
Company or by creditors of the Company.


 


7.     REISSUANCE OF WARRANTS.


 


(a)   Transfer of Warrant. 
If this Warrant is to be transferred, the Holder shall surrender this
Warrant to the Company, whereupon the Company will forthwith issue and deliver
upon the order of the Holder a new Warrant (in accordance with Section 7(d)),
registered as the Holder may request, representing the right to purchase the
number of Warrant Shares being transferred by the Holder and, if less then the
total number of Warrant Shares then underlying this Warrant is being
transferred, a new Warrant (in accordance with Section 7(d)) to the
Holder representing the right to purchase the number of Warrant Shares not
being transferred.


 


(b)   Lost, Stolen or Mutilated Warrant.  Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, and, in the case of loss, theft or destruction, of
any indemnification undertaking by the Holder to the Company in customary form
and, in the case of mutilation, upon surrender and cancellation of this
Warrant, the Company shall execute and deliver to the Holder a new Warrant (in
accordance with Section 7(d)) representing the right to purchase
the Warrant Shares then underlying this Warrant.


 


(c)   Exchangeable for Multiple Warrants.  This Warrant is exchangeable, upon the
surrender hereof by the Holder at the principal office of the Company, for a
new Warrant or Warrants (in accordance with Section 7(d))
representing in the aggregate the right to purchase the number of Warrant
Shares then underlying this Warrant, and each such new 


 

















 


Warrant will represent the
right to purchase such portion of such Warrant Shares as is designated by the
Holder at the time of such surrender; provided, however, that no Warrants for
fractional shares of Common Stock shall be given.


 


(d)   Issuance of New Warrants. 
Whenever the Company is required to issue a new Warrant pursuant to the
terms of this Warrant, such new Warrant (i) shall be of like tenor with
this Warrant, (ii) shall represent, as indicated on the face of such new
Warrant, the right to purchase the Warrant Shares then underlying this Warrant
(or in the case of a new Warrant being issued pursuant to Section 7(a) or
Section 7(c), the Warrant Shares designated by the Holder which,
when added to the number of shares of Common Stock underlying the other new
Warrants issued in connection with such issuance, does not exceed the number of
Warrant Shares then underlying this Warrant), (iii) shall have an issuance
date, as indicated on the face of such new Warrant which is the same as the
Issuance Date, and (iv) shall have the same rights and conditions as this
Warrant.


 


8.     NOTICES.  Whenever notice is required to be given under
this Warrant, unless otherwise provided herein, such notice shall be given in
accordance with the following instructions: 
(a) if within the 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 (c) will be
deemed given (i) if delivered by first-class registered or certified
domestic mail, three business days after being so mailed, (ii) if
delivered by nationally recognized overnight carrier, one business day after
being so mailed, (iii) if delivered by International Federal Express, two
business days after being so mailed, and (iv) if delivered by facsimile,
upon electronic confirmation of receipt and will be delivered and addressed as
follows:


 


(a) if
to the Company, to:


 


Beacon
Power Corporation

65 Middlesex Road

Tyngsboro, Massachusetts 01879

Attention: James M. Spiezio, Chief Financial Officer

Facsimile:  (978) 988-1337


 


with
a copy to:


 


Edwards
Angell Palmer & Dodge LLP

111 Huntington Avenue

Boston, Massachusetts 02199-7613


Attention:  Albert L. Sokol

Facsimile: (617) 227-4420


 


(b) if
to the Holder, at its address on the Exercise Notice, annexed as Exhibit A
hereto, or at such other address or addresses as may have been furnished to the
Company in writing.  The Company shall
provide the Holder with prompt written notice of all actions taken pursuant to
this Warrant, including in reasonable detail a description of such action and
the reason therefor.


 

















 


9.     AMENDMENT AND WAIVER.  Except as otherwise provided herein, the
provisions of this Warrant may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed
by it, only if the Company has obtained the written consent of the Holder.


 


10.   GOVERNING LAW.  This Warrant shall be governed by and
construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Warrant shall be
governed by, the internal laws of the State of New York, without giving effect
to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York.


 


11.   CONSTRUCTION; HEADINGS.  This Warrant shall be deemed to be jointly
drafted by the Company and the Holder and shall not be construed against any
person as the drafter hereof.  The
headings of this Warrant are for convenience of reference and shall not form
part of, or affect the interpretation of, this Warrant.


 


12.   REMEDIES, OTHER OBLIGATIONS, BREACHES AND
INJUNCTIVE RELIEF.  The remedies
provided in this Warrant shall be cumulative and in addition to all other
remedies available under this Warrant, at law or in equity (including a decree
of specific performance and/or other injunctive relief), and nothing herein
shall limit the right of the Holder to pursue actual damages for any failure by
the Company to comply with the terms of this Warrant.


 


13.   TRANSFER.  This Warrant may be offered for sale, sold, transferred or assigned
without the consent of the Company.


 


14.   CERTAIN DEFINITIONS.  For purposes of this Warrant, the following
terms shall have the following meanings:


 


(a)   “Black Scholes Value”
means the value of this Warrant based on the Black and Scholes Option Pricing
Model obtained from the “OV” function on Bloomberg as of the day of the
consummation of the applicable Fundamental Transaction for pricing purposes and
reflecting (i) a price per share of Common Stock equal to the VWAP of the
Common Stock for the Trading Day immediately preceding the date of consummation
of the applicable Fundamental Transaction, (ii) a risk-free interest rate
corresponding to the U.S. Treasury rate for a period equal to the remaining
term of this Warrant as of the date of consummation of the applicable
Fundamental Transaction and (iii) an expected volatility equal to the
greater of 80% and the 30 day volatility obtained from the HVT function on
Bloomberg determined as of the Trading Day immediately following the public
announcement of the applicable Fundamental Transaction.


 


(b)   “Bloomberg” means
Bloomberg Financial Markets.


 


(c)   “Business Day” means
any day other than Saturday, Sunday or other day on which commercial banks in
The City of New York are authorized or required by law or governmental
authority to remain closed.


 
















 


(d)   “Change of Control”
means any Fundamental Transaction other than (A) any reorganization,
recapitalization or reclassification of the Common Stock, in which holders of
the Company’s voting power immediately prior to such reorganization,
recapitalization or reclassification continue after such reorganization,
recapitalization or reclassification to hold publicly traded securities and,
directly or indirectly, the voting power of the surviving entity or entities
necessary to elect a majority of the members of the board of directors (or
their equivalent if other than a corporation) of such entity or entities, or (B) pursuant
to a migratory merger effected solely for the purpose of changing the
jurisdiction of incorporation of the Company.


 


(e)   “Closing Bid Price”
and “Closing Sale Price” means,
for any security as of any date, the last closing bid price and last closing
trade price, respectively, for such security on the Principal Market, as
reported by Bloomberg, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing bid price or the
closing trade price, as the case may be, then the last bid price or the last
trade price, respectively, of such security prior to 4:00:00 p.m., New
York time, as reported by Bloomberg, or, if the Principal Market is not the
principal securities exchange or trading market for such security, the last
closing bid price or last trade price, respectively, of such security on the
principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last
closing bid price or last trade price, respectively, of such security in the
over-the-counter market on the electronic bulletin board for such security as
reported by Bloomberg, or, if no closing bid price or last trade price,
respectively, is reported for such security by Bloomberg, the average of the
bid prices, or the ask prices, respectively, of any market makers for such
security as reported in the “pink sheets” by Pink Sheets LLC (formerly the
National Quotation Bureau, Inc.). 
If the Closing Bid Price or the Closing Sale Price cannot be calculated
for a security on a particular date on any of the foregoing bases, the Closing
Bid Price or the Closing Sale Price, as the case may be, of such security on
such date shall be the fair market value as mutually determined by the Company
and the Holder.  All such determinations
to be appropriately adjusted for any stock dividend, stock split, stock
combination or other similar transaction during the applicable calculation
period.


 


(f)    “Common Stock” means
(i) the Company’s shares of Common Stock, par value $0.01 per share, and (ii) any
share capital into which such Common Stock shall have been changed or any share
capital resulting from a reclassification of such Common Stock.


 


(g)   “Eligible Market”
means the Principal Market, The New York Stock Exchange, Inc., The NYSE
Amex Equities, The NASDAQ Global Select Market or The NASDAQ Global Market.


 


(h)   “Expiration Date”
means August 31, 2010.


 


(i)    “Fundamental Transaction”
means that the Company shall,
directly or indirectly, in one or more related transactions, (i) consolidate
or merge with or into (whether or not the Company is the surviving corporation)
another Person, or (ii) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Company
to another Person, or (iii) allow another Person to make a
purchase, tender or exchange offer that is accepted by the holders of more than
the 50% of the outstanding shares of Common Stock (not



 

















 


including
any shares of Common Stock held by the Person or Persons making or party to, or
associated or affiliated with the Persons making or party to, such purchase,
tender or exchange offer), or (iv) consummate a stock purchase agreement or other
business combination (including, without limitation, a reorganization,
recapitalization, spin-off or scheme of arrangement) with another Person as a result of which such other Person become the
beneficial owner of more than the 50% of the outstanding shares of
Common Stock, or (v) reorganize,
recapitalize or reclassify its Common Stock, or (vi) any “person” or “group”
(as these terms are used for purposes of Sections 13(d) and 14(d) of the
Exchange Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of 50% of the aggregate
ordinary voting power represented by issued and outstanding Common Stock.


 


(j)    “Options” means any
rights, warrants or options to subscribe for or purchase shares of Common Stock
or Convertible Securities.


 


(k)   “Parent Entity” of a
Person means an entity that,
directly or indirectly, controls the applicable Person and whose common stock or
equivalent equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the
Person or Parent Entity with the largest public market capitalization as of the
date of consummation of the Fundamental Transaction.


 


(l)    “Person” means an
individual, a limited liability company, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, any other entity and a
government or any department or agency thereof.


 


(m)  “Principal Market”
means The NASDAQ Capital Market.


 


(n)   “Successor Entity”
means the Person (or, if so elected by
the Holder, the Parent Entity) formed by, resulting from or surviving any
Fundamental Transaction or the Person (or, if so elected by the Holder, the
Parent Entity) with which such Fundamental Transaction shall have been entered
into.


 


(o)   “Trading Day” means
any day on which the Common Stock is traded on the Principal Market, or, if the
Principal Market is not the principal trading market for the Common Stock, then
on the principal securities exchange or securities market on which the Common
Stock are then traded; provided that “Trading Day” shall not include any day on
which the Common Stock is scheduled to trade on such exchange or market for
less than 4.5 hours or any day that the Common Stock is suspended from trading
during the final hour of trading on such exchange or market (or if such
exchange or market does not designate in advance the closing time of trading on
such exchange or market, then during the hour ending at 4:00 p.m., New
York time).


 


(p)   “VWAP” means, for any
date, the price determined by the first of the following clauses that applies: (a) if
the Common Stock is then listed or quoted on an Eligible  Market, the daily volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on such
Eligible Market on which the Common Stock is then listed or quoted for trading
as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:02 p.m. (New York City time)); (b)  if the
Common stock is not then listed 


 

















 


or quoted on an eligible
market, and if the Common Stock is listed or quoted on the OTC Bulletin Board,
the volume weighted average price of the Common Stock for such date (or the
nearest preceding date) on the OTC Bulletin Board; (c) if the Common Stock
is not then listed or quoted for trading on the OTC Bulletin Board and if
prices for the Common Stock are then reported in the “Pink Sheets” published by
Pink OTC Markets, Inc. (or a similar organization or agency succeeding to
its functions of reporting prices), the most recent bid price per share of the
Common Stock so reported; or (d) in all other cases, the fair market value
of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Holder and reasonably acceptable to the Company, the fees
and expenses of which shall be paid by the Company.


 


[Signature Page Follows]


 

















 


IN WITNESS WHEREOF, the Company has caused this
Warrant to Purchase Common Stock to be duly executed as of the Issuance Date
set out above.


 


 


	
   

  	
  BEACON POWER CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


EXHIBIT A


EXERCISE NOTICE


 


TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS


WARRANT TO PURCHASE COMMON STOCK


 


BEACON POWER CORPORATION


 


The
undersigned holder hereby exercises the right to purchase
                                  
shares of Common Stock (“Warrant Shares”)
of Beacon Power Corporation, a Delaware corporation (the “Company”), evidenced by the attached
Warrant to Purchase Common Stock (the “Warrant”).  Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.


 


1.  Form of Exercise Price.  The Holder intends that payment of the
Exercise Price shall be made as:


 


a “Cash Exercise”
with respect to
                                  
Warrant Shares; and/or


 


a “Cashless Exercise”
with respect to
                            
Warrant Shares.


 


2.  Payment of Exercise Price.  In the event that the holder has elected a Cash
Exercise with respect to some or all of the Warrant Shares to be issued
pursuant hereto, the holder shall pay the Aggregate Exercise Price in the sum
of
$                                      
to the Company in accordance with the terms of the Warrant.


 


3.  Delivery of Warrant Shares.  The Company shall deliver to the holder
                    
Warrant Shares in accordance with the terms of the Warrant.


 

















 


4.  The undersigned holder hereby certifies that
the number of shares of Common Stock owned by the holder and a detailed
computation of the number of shares of Common Stock the holder is entitled to
acquire by exercise or conversion of any security or instrument without regard
to any time, cap or other limitation on such exercise or conversion, are set
forth below.


 


 


	
  Date:
  

  	
   

  	
   

  	
   

  	
  ,

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Registered Holder

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
								



 

















 


ACKNOWLEDGMENT


 


The
Company hereby acknowledges this Exercise Notice and hereby directs
Computershare Limited to issue the above indicated number of shares of Common
Stock in accordance with the Transfer Agent Instructions dated
                                      ,
20       from the Company and acknowledged and
agreed to by Computershare Limited.


 


	
   

  	
  BEACON POWER CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: