Unassociated Document


    Exhibit
4.1


    AMENDMENT
NO. 4

    to

    RIGHTS
AGREEMENT

    between

    


    BEACON
POWER CORPORATION

    and

    COMPUTERSHARE
TRUST COMPANY, N.A. (fka EQUISERVE TRUST COMPANY, N.A.)

    


    Dated as
of February 18, 2009

    


    This
AMENDMENT NO. 4, dated as of February 18, 2009 to Rights Agreement, dated as of
September 25, 2002, as previously amended by Amendment No. 1 dated as of
December 27, 2002, Amendment No. 2 dated as of August 8, 2007 and Amendment No.
3 dated as of October 24, 2007 (as amended, the “Rights Agreement”),
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”).  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 remove the exception allowing The Quercus Trust and Persons who are
Beneficial Owners through it to have a beneficial ownership percentage of up to
20%; and

    


    WHEREAS
the Board has resolved to exclude from the beneficial ownership of Seaside 88,
LP, a Florida limited partnership (“Seaside”) the shares it has a right to
acquire (but not shares that it has actually acquired) pursuant to that certain
Common Stock Purchase Agreement dated as of February 19, 2009 between Seaside
and the Company;

     

    


    NOW
THEREFORE, in consideration of the premises and mutual agreements contained
herein, the parties hereto pursuant to Section 27 of the Rights Agreement agree
as follows:

    


    
      	
              1.

            	
              Amendments. The
      Rights Agreement is amended as
follows:

            


    

    


    
      	 
      	
              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%
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 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 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 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% 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 more of the Common Shares of the Company; provided, however,
that if a Person shall become the Beneficial Owner of 15% 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 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; and provided further that Seaside 88, LP
shall not pursuant to this paragraph (ii) (but without prejudice to paragraph
(i)) be deemed the Beneficial Owner of, or to beneficially own, common stock of
the Company that it is entitled to acquire pursuant to that certain Common Stock
Purchase Agreement dated as of February 19, 2009, between it and the Company ;
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”

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


    
      	 
      	
              1.3

            	
              The
      second full paragraph of Exhibit C (Summary of Rights to Purchase
      Preferred Shares) is amended to delete the references to the Quercus
      Owners, and then 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 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.”

     

    
      	
              2.

            	
              Miscellaneous.

            


    

    


    
      	 
      	
              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.

            


    

    


    
      	 
      	
              2.2

            	
              Governing Law.
      This Amendment No. 4 shall be governed by and construed in accordance with
      the laws of the State of Delaware.

            


    

     

    
      	 
      	
              2.3

            	
              Counterparts.
      This Amendment No. 4 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.

            


    

    


    


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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to be duly
executed and delivered on February 19, 2009.

     

    
      	 
      	 
      	 
      
	 
      	
              BEACON
      POWER CORPORATION

            
	 
      	 
      	 
      
	 
      	
              By:  

            	 
      
	 
      	
              /s/ James M. Spiezio

            
	 	      
              Name:
      James M. Spiezio

            
	 
      	
              Title:
      Chief Financial Officer

            


    

     

    
      	 
      	 
      	 
      
	 
      	
              COMPUTERSHARE
      TRUST COMPANY, N.A. 

              (fka
      EQUISERVE TRUST COMPANY, N.A.)

            
	 
      	 
      	 
      
	 
      	
              By:  

            	 
      
	 
      	
              /s/ Dennis Moccia 

            
	 	      
              Name:
      Dennis Moccia

            
	 
      	
              Title:
      Manager, Contract Administration