Unassociated Document


    AMENDED
AND RESTATED

     

    RIGHT
OF FIRST REFUSAL AND CO-SALE AGREEMENT

     

    This
Amended and Restated Right of First Refusal and Co-Sale Agreement (the “Agreement”)
is made and entered into as of April 17, 2009 by and among Energy and Power
Solutions, Inc., a California corporation (the “Company”),
those investors in the Company listed on Exhibit A
attached hereto (the “Investors”)
and the shareholders of the Company listed on Exhibit B
attached hereto (the “Shareholders”).

     

    WHEREAS, each Shareholder
currently owns that number of shares of the Company’s Common Stock (the “Common
Stock”) as shown beside such Shareholder’s name on Exhibit B
attached hereto.

     

    WHEREAS, on November 30, 2007,
certain of the Investors purchased from the Company that number of shares of the
Company’s Series A Preferred Stock (“Series A
Stock”) shown beside each Investor’s name on Exhibit A
attached hereto, pursuant to that certain Series A Preferred Stock Purchase
Agreement among the Company and the Investors (the “Series A Purchase
Agreement”).  Such Investors are referred to as “Prior
Investors.”

     

    WHEREAS, concurrently
herewith, the Prior Investors and new Investors are purchasing from the Company
that number of shares of the Company’s Series B Preferred Stock (“Series B
Stock”) shown beside each Investor’s name on Exhibit A
attached hereto, pursuant to that certain Series B Preferred Stock Purchase
Agreement among the Company and the Investors dated of even date herewith (the
“Series B
Purchase Agreement”).

     

    WHEREAS, as a further
inducement to the Investors to purchase such shares of Series B Stock from the
Company and to enter into the Series B Purchase Agreement, each Shareholder has
agreed to grant the Investors certain rights of first refusal and rights of
co-sale with respect to the shares of the Company’s common stock, par value
$0.0001 (the “Common
Stock”) currently owned by such Shareholder and any Common Stock or other
Stock (as defined below) of the Company hereafter acquired by such Shareholder,
all on the terms and conditions set forth in this Agreement.

     

    NOW
THEREFORE, in consideration of the foregoing recitals and the mutual
covenants made herein, the parties hereto agree as follows:

     

    1.           CERTAIN
DEFINITIONS.  For purposes of
this Agreement, the following terms have the following meanings:

     

    1.1    “Stock”
means and includes all shares of Common Stock issued and outstanding at the
relevant time plus (a) all shares of Common Stock that may be issued upon
exercise of any options, warrants and other rights of any kind that are then
exercisable, and (b) all shares of Common Stock that may be issued upon
conversion of (i) any convertible securities, including, without
limitation, the Company's Preferred Stock (the “Preferred
Stock”) and debt securities then outstanding that are by their terms then
convertible into or exchangeable for Common Stock (or into securities that in
turn are convertible into Common Stock) or (ii) any such convertible
securities issuable upon exercise of outstanding options, warrants or other
rights that are then exercisable.

     


    
      
         


      

      
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    1.2           “Offered
Stock” means all Common Stock of the Company proposed to be Transferred
by a Shareholder and all options or warrants for the purchase of Common
Stock.

     

    1.3           “Transfer”
and “Transferred”
mean and include any sale, assignment, encumbrance, hypothecation, pledge,
conveyance in trust, gift, transfer by bequest, devise or descent, or other
transfer or disposition of any kind, including but not limited to transfers to
receivers, levying creditors, trustees or receivers in bankruptcy proceedings or
general assignees for the benefit of creditors, whether voluntary or by
operation of law, directly or indirectly, except for:

     

    (a)           any
transfers of Stock by gift during a Shareholder’s lifetime or on a Shareholder’s
death by will or intestacy to such Shareholder’s spouse, the lineal descendant or
antecedent, brother or sister of Shareholder or Shareholder’s spouse, or the
spouse of any lineal descendant or antecedent, brother or sister of Shareholder
or Shareholder’s spouse,
whether or not any of the above are adopted, or to a trust or trusts for the
exclusive benefit of Shareholder or those members of Shareholder’s family
specified in this Section 1.3(a) or transfers of Stock by Shareholder by
devise or descent; provided, that, in
all cases, the transferee or other recipient executes a counterpart copy of this
Agreement and becomes bound hereby as was Shareholder;

     

    (b)           any
transfer of Stock by a Shareholder made (i) pursuant to a statutory merger
or statutory consolidation of the Company with or into another corporation or
corporations, (ii) pursuant to the winding up and dissolution of the
Company, or (iii) at, and pursuant to, an IPO (as defined
below);

     

    (c)           any
transfers of Stock to or by an Investor pursuant to such Investor’s exercise of
the Investor’s right of first refusal or right of co-sale
hereunder;

     

    (d)           any
bona fide pledge by a Shareholder made pursuant to a bona fide loan transaction
that creates a mere security interest, provided that the
pledgee executes a counterpart copy of this Agreement and becomes bound thereby
as a seller in the event that and to the extent that such pledgee ever acquires
ownership of such shares;

     

    (e)           any
bona fide gift effected by a Shareholder for tax planning purposes, provided, that the
pledgee, transferee or donee or other recipient executes a counterpart copy of
this Agreement and becomes bound thereby as was the Shareholder; or

     

    (f)           in
any one twelve (12) month period, on a cumulative basis, up to two percent (2%)
of the Stock (calculated as of the date of this Agreement, as may be adjusted
from time to time for stock splits, stock dividends, combinations,
recapitalizations and the like) held by such Shareholder.

     

    1.4  “IPO” means the first sale of the Company’s
Common Stock pursuant to a bona fide firm commitment underwritten public
offering effected by means of a registration statement under the Securities Act
of 1933, as amended, in which the aggregate public offering price (before
deduction of underwriters’ discounts and commissions) equals or exceeds
$30,000,000 and the public offering price per share of which equals or exceeds
$5.00 per share (before deduction of underwriters’ discounts and
commissions).

     

    2.           NOTICE OF
PROPOSED TRANSFER.  Before any
Shareholder may effect any Transfer of any Stock, such Shareholder (the “Selling
Shareholder”) must give at the same time to the Company and the Investors
a written notice signed by the Selling Shareholder (the “Selling
Shareholder’s Notice”) stating: (a) the Selling Shareholder’s bona
fide intention to transfer such Offered Stock; (b) the number of shares of
Offered Stock proposed to be transferred to each proposed purchaser or other
transferee (“Proposed
Transferee”); (c) the name, address and relationship, if any, to the
Selling Shareholder of each Proposed Transferee; (d) the bona fide cash
price or, in reasonable detail, other consideration, per share for which the
Selling Shareholder proposes to transfer such Offered Stock to each Proposed
Transferee (the “Offered
Price”); (e) the date and time of closing the proposed transfer of
Offered Stock (the “Closing”);
and (f) other relevant terms of the proposed sale.  Upon the
request of the Company or any Investor, the Selling Shareholder will promptly
furnish to the Company and to the Investors such other information as may be
reasonably requested to establish that the offer and Proposed Transferee(s) are
bona fide.  In the event that the proposed Transfer is being made
pursuant to one of the exemptions set forth in Section 1.3 above, the Selling
Shareholder’s Notice shall state under which exemption the proposed Transfer is
being made.

     


    
      
         


      

      
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    3.      
      RIGHT OF FIRST
REFUSAL.

     

    3.1    Company
Right of First Refusal.  The Company shall have the
right to purchase (the “Company’s
Right of First Refusal”)
all or any part of the Offered Stock, if the Company gives written notice of the
exercise of the right to the Selling Shareholder within thirty (30) days (the
“Company’s
Refusal Period”) after the
Selling Shareholder’s Notice is deemed to have been delivered to the Company and
the Investors (pursuant to Section 10.1 hereof).  If the Company
does not intend to exercise the Company’s Right of First Refusal in full or if
the Company is not lawfully able to repurchase the Offered Stock, the Company
will send written notice thereof (the “Company’s
Expiration Notice”) to the
Selling Shareholder and the Investors at least ten (10) days before the
expiration of the Company’s Refusal Period.  The Company’s Expiration
Notice will specify the Offered Stock subject to the Secondary Right of First
Refusal described below.  In the event that a Selling
Shareholder is a member of the Board of Directors of the Company, such Selling
Shareholder shall be excluded from the Board of Directors’ determination as to
whether the Company’s should exercise the Company’s Right of First Refusal under
this Section
3.1.

     

    3.2           Secondary
Right of First Refusal.  If the Company
does not exercise the Company’s Right of First Refusal, then each Investor and
Founder (as defined in the Series B Purchase Agreement) will have a right of
first refusal (the “Secondary Right
of First Refusal”) to purchase all of the Offered Stock not purchased by
the Company.  The Secondary Right of First Refusal may be exercised as
follows:

     

    (a)           Each
Investor and Founder (each, a “Right
Holder”) desiring to purchase any or all of the Offered Stock not
Purchased by the Company must, within the fifteen (15) day period commencing on
the date the Company’s Expiration Notice is deemed to have been delivered to the
Investors (pursuant to Section 10.1 hereof), give written notice to the Selling
Shareholder and to the Company of such Right Holder’s election to purchase any
of the Offered Stock, and the number of shares and type of Offered Stock that
such Right Holder desires to purchase.  If the total number of shares
specified in the elections of Right Holders exceeds the number of shares of
Offered Stock available for purchase, then (unless the Right Holders agree
otherwise in writing) each Right Holder electing to purchase will have the right
to purchase that number of shares of Offered Stock that is obtained by
multiplying the number of shares of Offered Stock available for purchase by a
fraction (i) the numerator of which will be the number of shares of Stock
then held by such Right Holder, and (ii) the denominator of which will be
the sum of the total number of shares of Stock then held by all Right Holders
electing to purchase the Offered Stock (the “ROFR Pro Rata
Share”); provided that in the
event any Right Holder declines to purchase its full ROFR Pro Rata Share of the
Offered Stock, then the Company shall promptly give written notice to each Right
Holder who has timely agreed to purchase at least its full ROFR Pro Rata Share
of such Offered Stock (each, a “Purchasing Right
Holder”) of such Purchasing Right Holder’s oversubscription right to
purchase a portion of the non-Purchasing Right Holder’s ROFR Pro Rata Share, on
a pro rata basis according to the relative ROFR Pro Rata Shares of the
Purchasing Rights Holders, at any time within five (5) days after receiving such
over-allotment notice (the foregoing fifteen (15) plus five (5) day period, the
“Secondary
Refusal Period”)

     


    
      
         


      

      
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    (b)           Within
ten (10) days after expiration of the Secondary Refusal Period, the Company will
give written notice (the “Secondary
Expiration Notice”) to the Selling Shareholder and the Right Holders
specifying (i) that all of the Offered Stock was subscribed by the Company
and/or Right Holder exercising their respective Rights of First Refusal or
(ii) that the Transfer proposed by the Selling Shareholder is subject to a
Right of Co-Sale, pursuant to Section 4 hereof, with respect to the Offered
Stock not purchased by the Company or Right Holders in accordance with this
Section 3.

     

    3.3           Purchase
Price.  The purchase price for the Offered Stock to be
purchased by the Company or by a Right Holder exercising its respective Right of
First Refusal under this Agreement will be the Offered Price, and will be
payable as set forth in Section 3.4 hereof.  If the Offered Price
includes consideration other than cash, the cash equivalent value of the
non-cash consideration will be determined by the Board of Directors of the
Company in good faith, which determination will be binding upon the Company, the
Right Holders and the Selling Shareholder absent fraud or error.

     

    3.4           Payment.  Payment
of the purchase price for Offered Stock purchased by the Company or by a Right
Holder exercising its respective Right of First Refusal will be made within ten
(10) days after the date of the Secondary Expiration Notice.  Payment
of the purchase price will made, at the option of the Company or, as the case
may be, by a Right Holder, (a) in cash (by check), (b) by cancellation
of all or a portion of any outstanding indebtedness of Shareholder to the
Company or such Right Holder, as the case may be, or (c) by any combination
of the foregoing.

     

    3.5           Rights of
Shareholder.  Upon the date that payment is made for the
Offered Stock purchased by the Company and/or the Right Holders pursuant to
their respective Rights of First Refusal hereunder, the Selling Shareholder will
have no further rights as a holder of such Offered Stock and the Selling
Shareholder will forthwith cause all certificate(s) evidencing such Offered
Stock to be surrendered to the Company for cancellation, and, as to purchase by
Right Holder(s), for transfer to the purchasing Right Holder(s).

     

    3.6           Selling
Shareholder’s Right to Transfer.  If the Right Holders have not
elected pursuant to their Secondary Right of First Refusal to purchase all of
the Offered Stock not purchased by the Company, then, subject to the Right of
Co-Sale, the Selling Shareholder may transfer that portion of the Offered Stock
permitted to be sold by the Selling Shareholder to any person named as a
Proposed Transferee in the Selling Shareholder’s Notice, at the Offered Price or
at a higher price, provided that such transfer (a) is consummated within
one hundred twenty (120) days after the date of the Selling Shareholder’s Notice
and (b) is in accordance with the terms and conditions of this
Agreement.  If the Offered Stock is transferred in accordance with the
terms and conditions of this Agreement, then the transferee(s) of the Offered
Stock will thereafter hold such Offered Stock free of the Secondary Right of
First Refusal, the Right of Co-Sale and all other restrictions imposed by this
Agreement; provided that nothing herein will release any such transferee from
any obligations or restrictions that may be imposed on such transferee under the
Stock Restriction Agreement.  If the Offered Stock is not so
transferred during such one hundred twenty (120) day period, then the Selling
Shareholder will not transfer any of such Offered Stock without complying again
in full with the provisions of this Agreement.

     


    
      
         


      

      
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    4.      
     RIGHT OF
CO-SALE.

     

    4.1           Right of
Co-Sale.  If the Company
and Right Holders have waived or failed to timely exercise their Rights of First
Refusal to acquire all of the Offered Stock, each Investor will have the right
to participate in the transfer of any Offered Stock not transferred to the
Company or to the Right Holders (the “Remaining Offered
Stock”) in the manner set forth herein (the “Right of
Co-Sale”).  Pursuant to this Section 4, each Investor may
transfer to the Proposed Transferee(s) identified in the Selling Shareholder’s
Notice such Investor’s Pro Rata Share of the Remaining Offered Stock, by giving
written notice to the Selling Shareholder within ten (10) days after the date of
the Secondary
Expiration Notice; specifying the number of shares and type of Stock that such
Investor desires to transfer to each Proposed Transferee by exercising the Right
of Co-Sale.  For purposes of this Section 4, an Investor’s “Pro Rata
Share” will be defined as a fraction, the numerator of which is the
number of shares of Stock then owned by such Investor, and the denominator of
which is the number of shares of Stock then owned by all Investors having a
Right of Co-Sale hereunder plus the number of shares of Stock held by the
Selling Shareholder who proposes the Transfer.

     

    4.2    Consummation
of Co-Sale.  Each Investor, in
exercising the Right of Co-Sale, may effect such Investor’s participation in
such Transfer by delivering to the Selling Shareholder at the Closing of the
transfer of Offered Stock to such transferee one or more certificates, properly
endorsed for Transfer, representing such Stock to be Transferred by such
Investor.  In the event that the prospective purchaser objects to the
delivery of Preferred Stock in lieu of Common Stock, an Investor may (at such
Investor’s option) convert such Preferred Stock into Common Stock and deliver
Common Stock to the prospective purchaser.  The Company agrees to make
any such conversion concurrent with the contingent upon the actual transfer of
such shares to the purchaser.  At the Closing, such certificates or
other instruments will be transferred and delivered to the Proposed
Transferee(s) set forth in the Selling Shareholder’s Notice in consummation of
the transfer of the Offered Stock pursuant to the terms and conditions specified
in the Selling Shareholder’s Notice, and Selling Shareholder will remit, or will
cause to be remitted, to Investor within seven (7) days after such Closing that
portion of the proceeds of the Transfer to which Investor is entitled by reason
of such Investor’s participation in such transfer pursuant to the Right of
Co-Sale.  In the event that any Investor electing to exercise such
Investor’s Right of Co-Sale fails to deliver the stock certificates as specified
above at the Closing, such Investor shall have waived his, her or its Right of
Co-Sale therefor and the Selling Shareholder shall be entitled to complete the
Transfer at the Closing without participation by the waiving
Investor.  If all of the Offered Stock is not Transferred at the
Closing, however, the Selling Shareholder must again comply with the Right of
Co-Sale requirements with respect to any future proposed Transfer
thereof.

     


    
      
         


      

      
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    4.3    Multiple
Series, Classes or Types of Stock.  If the Remaining Offered
Stock consists of more than one series or class or type of Stock, each Investor
has the right to purchase or transfer hereunder, as the case may be, such
Investor’s Pro Rata Share of each such series, class or type of Stock;
provided, however, that as to the Right of Co-Sale,
(a) if such Investor does not hold any of such series, class, or type of
Stock, and the Proposed Transferee is not willing, at the Closing, to purchase
some other series, class or type of Stock from such Investor as part of such
Investor’s Pro Rata Share (provided Investor has not elected to convert its
shares into the series or class of the Remaining Offered Stock as set forth in
Section 4.2 above) or (b) if the Proposed Transferee is unwilling to
purchase any Stock from such Investor at the Closing (each such circumstance
being referred to herein as an “Incomplete
Co-Sale”), then, the
Selling Shareholder shall be entitled to Transfer the Offered Stock representing
such Investor’s Pro Rata Share at the Closing and Investor will have the put
right (the “Put
Right”) set forth in
Section 5.2 hereof.

     

    5.           REFUSAL TO TRANSFER; PUT
RIGHT.

     

    5.1           Refusal
to Transfer.  Any attempt by
any Selling Shareholder to transfer any Stock in violation of any provision of
this Agreement will be void.  Without first obtaining the written
approval of each Investor, the Company will not (a) transfer on its books
any Stock that has been sold, gifted or otherwise transferred in violation of
this Agreement or (b) treat as owner of such Stock, or accord the right to
vote to, or pay dividends to, any purchaser, donee or other transferee to whom
such Stock may have been so transferred.

     

    5.2           Put
Right.  If a Selling
Shareholder transfers any Stock in contravention of an Investor’s Right of
Co-Sale under this Agreement (a “Prohibited
Transfer”), or if an Incomplete Co-Sale occurs and the provisions of
Section 4.3 hereof apply, the relevant Investor may require such Selling
Shareholder to purchase from such Investor, for cash or such other consideration
as the Selling Shareholder received in the Prohibited Transfer or Incomplete
Co-Sale, that number of shares of Stock (of the same class, series or type as
transferred in the Prohibited Transfer or Incomplete Co-Sale, if such Investor
then owns Stock of such class, series or type, and otherwise of Common Stock)
having a purchase price equal to the aggregate purchase price such Investor
would have received in the closing of such Prohibited Transfer or Incomplete
Co-Sale if such Investor had exercised and been able to consummate such
Investor’s Right of Co-Sale with respect thereto (the Investor’s “Put
Right”).  An Investor may exercise such Investor’s Put Right by
delivery of written notice to the Selling Shareholder and the Company (a “Put
Notice”) within ten (10) days after Investor becomes aware of the
Prohibited Transfer or Incomplete Co-Sale.  The closing of such sale
to the Selling Shareholder under such Investor’s Put Right will occur within
seven (7) days after the date of such Investor’s Put Notice.

     

    6.           MARKET
STAND-OFF AGREEMENT.  Each Shareholder hereby agrees that upon
the prior written request of the Company or the managing underwriter, it will
not during the period commencing on the date of the final prospectus relating to
the Company’s initial public offering and ending on the date specified by the
Company and the managing underwriter (such period not to exceed one hundred
eighty (l80) days) (i) lend, offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock (whether such
shares or any such securities are then owned by the Shareholder or are
thereafter acquired), or (ii) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise.  In order to
enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the shares subject to this
Section  6 and to impose stop transfer instructions with respect to
the shares of stock of each Shareholder (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such
period.

     


    
      
         


      

      
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    7.       
    CANCELLATION
OF REPURCHASED STOCKHOLDERS’ SHARES.  Any shares of
Common Stock owned by a Shareholder which are purchased by the Company through
exercise of its Right of First Refusal under this Agreement will be cancelled by
the Company.

     

    8.        
   RESTRICTIVE LEGEND AND
STOP-TRANSFER ORDERS.

     

    8.1           Legend.  Each Shareholder
understands and agrees that the Company will cause the legend set forth below,
or a legend substantially equivalent thereto, to be placed upon any
certificate(s) or other documents or instruments evidencing ownership of Stock
by the Shareholder:

     

    THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS OF FIRST
REFUSAL AND RIGHTS OF CO-SALE AS SET FORTH IN A RIGHT OF FIRST REFUSAL AND
CO-SALE AGREEMENT DATED APRIL 17, 2009 ENTERED INTO BY THE HOLDER OF THESE
SHARES, THE COMPANY AND CERTAIN STOCKHOLDERS OF THE COMPANY.  A COPY
OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
COMPANY.  SUCH RIGHTS OF FIRST REFUSAL AND RIGHTS OF CO-SALE ARE
BINDING ON TRANSFEREES OF THESE
SHARES.

     

    8.2    Stop
Transfer Instructions.  Each Shareholder agrees, to
ensure compliance with the restrictions referred to herein, that the Company may
issue appropriate “stop transfer” certificates or instructions and that, if the
Company transfers its own securities, it may make appropriate notations to the
same effect in its records.

     

    9.      
     TERMINATION AND
WAIVER.

     

    9.1           Termination.  The Secondary
Right of First Refusal and Right of Co-Sale will terminate upon the earliest to
occur of the following: (a) immediately prior to the closing of the IPO;
(b) the date on which this Agreement is terminated by a writing executed by
the Company and the Investors holding a majority of the voting power of the
Stock then held by all Investors; (c) the dissolution of the Company;
(d) the closing of (1) the acquisition of all or substantially all the
assets of the Company or (2) a consolidation or merger (or similar
transaction or series of transactions) of the Company with or into any other
corporation or corporations in which the holders of the Company’s outstanding
shares immediately before such transaction or series of related transactions do
not, immediately after such transaction or series of related transactions,
retain stock (in substantially identical percentages) representing a majority of
the voting power of the surviving corporation (or its parent corporation if the
surviving corporation is wholly owned by the parent corporation) of such
transaction or series of related transactions; or (e) with respect to any
Investor, the date on which such Investor owns less than five percent (5%) of
the Stock of the Company.

     


    
      
         


      

      
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    9.2           Waiver.  The application
of the Right of First Refusal and/or Right of Co-Sale of an Investor as to any
proposed Transfer by a Selling Shareholder of any Stock may be waived in advance
of or after such transfer by the written agreement of the Investors holding
two-thirds of the voting power of the Stock then held by all the Investors, in
which case such waiver will be binding as to all Investors.  The
Company and the Investors will have the absolute right to exercise or refrain
from exercising any right or rights that each such party may have by reason of
this Agreement, including without limitation the right to acquire, or
participate in the transfer of, Offered Stock.  Neither the Company
nor any Investor will incur any liability to any other party hereto with respect
to exercising or refraining from exercising any such right or
rights.  Any waiver by a party of its rights hereunder will be
effective only if evidenced by a written instrument executed by such party or
its authorized representative or the failure of such party to respond within the
time required by the terms of this Agreement.

     

    10.           GENERAL
PROVISIONS.

     

    10.1           Notices.  Any and all
notices required or permitted to be given to a party pursuant to the provisions
of this Agreement will be in writing and will be effective and deemed to provide
such party sufficient notice under this Agreement on the earliest of the
following:  (a) at the time of personal delivery, if delivery is
in person; (b) at the time of transmission by facsimile, addressed to the
other party at its facsimile number specified herein (or hereafter modified by
subsequent notice to the parties hereto), with confirmation of receipt made by
both telephone and printed confirmation sheet verifying successful transmission
of the facsimile; (c) one (1) business day after deposit with an express
overnight courier for United States deliveries, or two (2) business days after
such deposit for deliveries outside of the United States, with proof of delivery
from the courier requested; or (d) three (3) business days after deposit in
the United States mail by certified mail (return receipt requested) for United
States deliveries.  All notices for delivery outside the United States
will be sent by facsimile or by express courier.  Notices by facsimile
shall be machine verified as received.  All notices not delivered
personally or by facsimile will be sent with postage and/or other charges
prepaid and properly addressed to the party to be notified at the address or
facsimile number set forth below such party’s signature on this Agreement or on
an Exhibit hereto, or at such other address or facsimile number as such other
party may designate by one of the indicated means of notice herein to the other
parties hereto as follows.  Any notice given hereunder to more than
one person will be deemed to have been given, for purposes of counting time
periods hereunder, on the date effectively given to the last party required to
be given such notice.

     

    (1)           if
to an Investor, at such Investor’s respective address or facsimile number as set
forth on Exhibit A hereto
or as shown in the Company’s records, as such records may be updated in
accordance with the provisions hereof, with a copy to John A. Eckstein, Esq.,
Fairfield and Woods P.C., 1700 Lincoln Street, Suite 2400, Denver, Colorado,
80203-4524, Facsimile 303-830-1033.

     

    (2)           if
to the Company, marked “Attention:  Jay Zoellner, Chief Executive
Officer” and should be delivered to 150 Paularino Avenue A120, Costa Mesa CA
92626, Facsimile: 714-957-1093, with a copy to Stephanie Brecher, Esq., Sheppard
Mullin Richter & Hampton LLP, 650 Town Center Drive, 4th Floor,
Costa Mesa, CA  92626, Facsimile: 714-428-5992.

     


    
      
         


      

      
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    (3)           if
to a Shareholder, at such Shareholder’s address or facsimile number set forth on
Exhibit B
hereto.

     

    10.2        Successors
and Assigns; Inclusion Within Certain Definitions.  This Agreement,
and the rights and obligations of the parties hereunder, will inure to the
benefit of, and be binding upon, their respective successors, assigns, heirs,
executors, administrators and legal representatives and, except for a Transfer
of Offered Stock to a transferee in full compliance with the terms and
conditions of this Agreement, any transferee of
Stock.  Notwithstanding anything herein to the contrary, any Investor
may assign its rights and obligations hereunder to any Affiliate of such
Investor.  For purposes of this Agreement, an individual, firm,
corporation, partnership, association, limited liability company, trust or any
other entity shall be deemed an “Affiliate”
of an Investor if he, she or it, directly or indirectly, controls, is controlled
by or is under common control with Investor, including, without limitation, any
partner, officer, director, member, manager or employee of Investor and any
venture capital fund now or hereafter existing that is controlled by or under
common control with one or more managers or general partners of or shares the
same management company with such Investor.  Any permitted transferee
of a Shareholder who is required to become a party hereto will be considered a
“Shareholder” for purposes of this Agreement without the need for any consent,
approval or sig­nature of any party hereto.

     

    10.3       
Severability. If any provision of this Agreement is
determined by any court or arbitrator of competent jurisdiction to be invalid,
illegal or unenforceable in any respect, such provision will be enforced to the
maximum extent possible given the intent of the parties hereto.  If
such clause or provision cannot be so enforced, such provision shall be stricken
from this Agreement and the remainder of this Agreement shall be enforced as if
such invalid, illegal or unenforceable clause or provision had (to the extent
not enforceable) never been contained in this
Agreement.  Notwithstanding the forgoing, if the value of this
Agreement based upon the substantial benefit of the bargain for any party is
materially impaired, which determination as made by the presiding court or
arbitrator of competent jurisdiction shall be binding, then both parties agree
to substitute such provision(s) through good faith
negotiations.

     

    10.4         Amendments
and Waivers; Transfer of Right. This Agreement may be
amended only by a written agreement executed by (i) the Company;
(ii) the holders of at least sixty-six and two thirds percent (66 2/3%) of
the Preferred Stock (voting together as a single class on an as-converted basis)
and (iii) the holders of at least a majority of the Common Stock; provided, however,
that no amendment or waiver shall be made that treats one Investor in a
materially adverse manner that is different from any other Investor without the
written consent of such adversely affected Investor.  Any amendment
effected in accordance with this section will be binding upon all parties hereto
and each of their respective successors and assigns.  No delay or
failure to require performance of any provision of this Agreement shall
constitute a waiver of that provision as to that or any other
instance.  No waiver granted under this Agreement as to any one
provision herein shall constitute a subsequent waiver of such provision or of
any other provision herein, nor shall it constitute the waiver of any
performance other than the actual performance specifically waived.

     


    
      
         


      

      
        -9-

        
          

        

      

      
         


      

    


    10.5          Governing
Law.  This Agreement will be
governed by and construed in accordance with the internal laws of the State of
California, without giving
effect to that body of laws pertaining to conflict of laws.

     

    10.6           Arbitration. Any dispute, claim,
question, or disagreement involving the interpretation or enforcement of any
provision of this Agreement or breach hereof or otherwise arising under or in
connection with this Agreement shall be submitted to binding arbitration in
Orange County, California, in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (expedited procedures) then in
effect.  There shall be three (3) arbitrators, all of whom shall be
neutral, and at least one (1) of whom shall be an attorney licensed to practice
law in the State of California for at lease ten (10) years.  The
arbitrators shall have the authority to exclude evidence found to be irrelevant,
redundant, or prejudicial beyond its probative value, and are instructed to
exercise that authority consistently with reasonably expediting the
proceeding.  The arbitrators may order specific performance,
preliminary and final injunctive relief, and other equitable
relief.  The arbitrators may make awards to the substantially
prevailing party in their discretion and all fees, costs, and expenses of
enforcing any right of such substantially prevailing party under or with respect
to this Agreement, including, without limitation, the reasonable fees and
expenses of attorneys and accountants.  The award or order of the
arbitrators may be entered and enforced in any court of competent
jurisdiction.  The arbitration hearing shall begin no more than 90
days after the arbitrators are selected and shall be closed no more than 60 days
thereafter, unless such time periods are extended or waived by the
parties.  The arbitrators' award shall be issued within 30 days after
the hearing is closed.

     

    10.7           Injunctive
Relief.  The Parties agree that damages cannot reasonably
compensate the Parties in the event of a violation of the covenants and
restrictions in this Agreement and that it may be difficult to ascertain the
damages which would be suffered by the Parties in such
cases.  Accordingly, the Parties hereby agree and consent that, in the
event of any such actual or threatened breach or violation, notwithstanding
Section 10.6, any party may obtain injunctive relief in order to prevent the
potential or continuing violation of the terms of this Agreement from any court
of competent jurisdiction located in Orange County, California; provided, however, that any
determination of the fair market value of securities shall be made by binding
arbitration in accordance with the provisions of Section 10.6 above, and such
arbitration may proceed concurrently with any action for injunctive
relief.  The award of permanent or temporary injunctive relief shall
in no way limit any other remedies to which a party may be entitled as a result
of any such breach.

     

    10.8           Obligation
of Company; Binding Nature of Exercise.  The Company
agrees to use its best efforts to enforce the terms of this Agreement, to inform
Investor of any breach hereof (to the extent the Company has knowledge thereof)
and to assist each Investor in the exercise of such Investor’s rights and
performance of such Investor’s obligations hereunder.

     

    10.9           Counterparts.  This Agreement
may be executed in any number of counterparts, each of which when so executed
and delivered will be deemed an original, and all of which together will
constitute one and the same agreement.

     

    10.10         Entire
Agreement.  This Agreement
and the documents referred to herein, together with all the Exhibits hereto,
constitute the entire agreement and understanding of the parties with respect to
the subject matter of this Agreement, and supersede any and all prior
understandings and agreements, whether oral or written, between or among the
parties hereto with respect to the specific subject matter hereof.

     


    
      
         


      

      
        -10-

        
          

        

      

      
         


      

    


    10.11         Conflict.  In the event of
any conflict between the terms of this Agreement and the Company’s Articles of
Incorporation or its Bylaws, as amended, the terms of the Company’s Articles of
Incorporation or its Bylaws, as the case may be, will control.  In the
event of any conflict between the terms of this Agreement and any other
agreement to which an Investor is a party or by which the Selling Shareholder is
bound, the terms of this Agreement will control.  In the event of any
conflict between the Company’s books and records and this Agreement or any
notice delivered hereunder, the Company’s books and records will control absent
fraud or manifest error.

     

    10.12         Calculation;
Binding Effect of Company Notices.  All calculations
of an Investor’s Pro Rata Share will be made by the Company as of the date of
the Company’s notice in which such Pro Rata Share appears.  The Pro
Rata Share of Investor as shown on any notice required hereunder to be delivered
by the Company will be binding upon the parties hereto absent a showing by the
Investor that such notice contains numerical or factual errors.

     

    10.13         Additional
Investors. Notwithstanding anything to the contrary contained herein, if
the Company issues additional shares of Preferred Stock after the date hereof,
any purchaser of such shares of Preferred Stock may become a party to this
Agreement by executing and delivering an additional counterpart signature page
to this Agreement and thereafter shall be deemed an “Investor” for all purposes
hereunder.

     

    10.14         Certain
Shareholders Bound by Agreement.  The Company agrees each
officer, employee or consultant who, as a result of his or her receipt hereafter
of an equity incentive grant by the Company pursuant to any stock purchase or
option plan or other award, contract or arrangement, would own Common Stock or
options to purchase Common Stock of the Company which together would represent
more than one percent (1%) of the Company’s outstanding securities (calculated
on a fully-diluted basis including, without limitation, all options outstanding
under the Company’s equity plan or other equity incentive plans, as may be
adopted from time to time, and all outstanding warrants or other securities
convertible into shares of the Company), shall be required, as a condition to
receipt of such equity incentive grant before any such grant is made, to become
a party to this Agreement by executing and delivering an additional counterpart
signature page to this Agreement and thereafter shall be deemed a “Shareholder”
for all purposes hereunder.

     

    10.15         Stock
Split. All references to numbers of shares in this Agreement shall be
appropriately adjusted to reflect any stock dividend, split, combination or
other recapitalization affecting the Stock occurring after the date of this
Agreement.

     

    10.16         Ownership.
Each Shareholder represents and warrants that he or she is the sole legal and
beneficial owner of the shares of Stock subject to this Agreement and that no
other person has any interest in such shares (other than a community property
interest as to which the holder thereof has acknowledged and agreed in writing
to the restrictions and obligations hereunder).

     


    
      
         


      

      
        -11-

        
          

        

      

      
         


      

    


    10.17         Aggregation
of Stock.  All shares of
Stock held or acquired by Affiliates shall be aggregated together for the
purpose of determining the availability of any rights under this
Agreement.

     

    10.18        
Titles
and Headings.  The titles, captions and
headings of this Agreement are included for ease of reference only and will be
disregarded in interpreting or construing this Agreement.  Unless
otherwise specifically stated, all references herein to “sections” and
“exhibits” will mean “sections” and “exhibits” to this
Agreement.

     

    10.19          Continuity
of Other Restrictions.  Any Stock not
purchased by the Company under the Right of First Refusal will continue to be
subject to all other restrictions, including rights of first refusal, imposed
upon such Stock by agreement or by law, including any restrictions imposed under
the Company’s Articles of Incorporation or Bylaws, as amended.

     

    


     

    [Signature
Page Follows]

     


    
      
         


      

      
        -12-

        
          

        

      

      
         


      

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Right of First Refusal and Co-Sale Agreement as of the
date first written above.

     

    


     

    COMPANY:

     

     

    ENERGY
AND POWER SOLUTIONS, INC.

     

     

    By: /s/ Jay Zoellner            

     

    Name: Jay
Zoellner

     

    Title:
President and CEO

     

    


     

    


     


    
      
        [Signature
Page to Amended and Restated Right of First Refusal and Co-Sale
Agreement]

         


      

      
         


        
          

        

      

      
         


      

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Right of First Refusal and Co-Sale Agreement as of the
date first written above.

     

    


     

    COMMON
SHAREHOLDERS:

     

     

    /s/ Jay Zoellner                    

    JAY
ZOELLNER

     

     

    /s/ Shiva Subramanya                

    SHIVA
SUBRAMANYA

     

     

    /s/ Staffan Akerstrom                

    STAFFAN
AKERSTROM

     

     

    /s/ George Botich                  

    GEORGE
BOTICH

     

     

    /s/ Charles Allured                  

    CHARLES
ALLURED

     


    
      
        [Signature
Page to Amended and Restated Right of First Refusal and Co-Sale
Agreement]

         


      

      
         


        
          

        

      

      
         


      

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Right of First Refusal and Co-Sale Agreement as of the
date first written above.

    


    


    INVESTORS:

    


    ALTIRA
TECHNOLOGY FUND V L.P.

    


    By:
Altira Management V LLC

    Its
General Partner

    


    By:  Altira
Group LLC

    Its Sole
Managing Member

    


    


    By: /s/ James R. Newell        
Jim
Newell
Managing
Member


    
      
        [Signature
Page to Amended and Restated Right of First Refusal and Co-Sale
Agreement]

         


      

      
         


        
          

        

      

      
         


      

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Right of First Refusal and Co-Sale Agreement as of the
date first written above.

    


     

    INVESTORS:

     

     

    NGEN
II, L.P.

     

    By:  NGEN
Partners II, LLC

    Its
General Partner

     

     

    By: /s/ Steven Parry            
Steven
Parry
Managing
Member

    


    


    


     


    
      
        [Signature
Page to Amended and Restated Right of First Refusal and Co-Sale
Agreement]

         


      

      
         


        
          

        

      

      
         


      

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Right of First Refusal and Co-Sale Agreement as of the
date first written above.

     

    


     

    INVESTORS:

     

    THE
ENVIRONMENT AGENCY ACTIVE

    PENSION
FUND

    


    By: The
Environment Agency,
its
Administrative Authority

     

    By:
Robeco Institutional Asset Management B.V.,
its
Authorized Agent

     

     

    By: /s/ J. G. van der Boon            
Name: J.
G. van der Boon
Title:

     

    
      By: /s/ A. J. C. van den Ouweland      
Name: A.
J. C. van den Ouweland
Title:

       

    

    STICHTING
CUSTODY ROBECO MASTER

    CLEAN
TECH II (EUR)

    


    
       

      By: /s/ J. G. van der Boon            
Name: J.
G. van der Boon
Title:

       

      
        By: /s/ A. J. C. van den Ouweland      
Name: A.
J. C. van den Ouweland
Title:

         

      

    

    STICHTING
CUSTODY ROBECO MASTER

    CLEAN
TECH II (USD)

    


    
       

      By: /s/ J. G. van der Boon            
Name: J.
G. van der Boon
Title:

       

      
        By: /s/ A. J. C. van den Ouweland      
Name: A.
J. C. van den Ouweland
Title:

        
 

      

    

    
      
        [Signature
Page to Amended and Restated Right of First Refusal and Co-Sale
Agreement]