Unassociated Document


    


    AMENDED
AND RESTATED INVESTORS’ RIGHTS AGREEMENT

     

    This
Amended and Restated Investors’ Rights Agreement (this “Agreement”)
is made and entered into as of April 17, 2009 (the “Effective
Date”), by and among Energy and Power Solutions, Inc., a California
corporation (the “Company”),
and the parties listed on Exhibit A
attached hereto (the “Investors”).

     

    WHEREAS, on November 30, 2007,
certain of the Investors purchased from the Company shares of its Series A
Preferred Stock (“Series A
Stock”) on the terms and conditions set forth in that certain Series A
Preferred Stock Purchase Agreement among the Company and certain 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
shares of its Series B Preferred Stock (“Series B
Stock,” and collectively with the Series A Stock, the “Purchased
Shares”) on the terms and conditions set forth in that certain Series B
Preferred Stock Purchase Agreement, dated of even date herewith, among the
Company and the Investors (the “Series B Purchase
Agreement,” and collectively with the Series A Purchase Agreement, the
“Purchase
Agreements”); and

     

    WHEREAS,
the Purchase Agreements provide that the Investors shall be granted certain
information and registration rights and rights of first refusal, all as more
fully set forth herein.

     

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

     

    1.           INFORMATION
RIGHTS.

     

    1.1           Financial
Information.  The Company shall
deliver to each Investor (or transferee of an Investor) that continues to hold,
together with any of its affiliates, at least twenty percent (20%) of the
Purchased Shares issued to such Investor under the Series B Purchase Agreement
(such an Investor, a “Major Investor”):

     

    (a)           Annual
Reports.  As soon as practicable and in any event within one
hundred twenty (120) days after the end of each fiscal year of the Company, a
consolidated income statement for such fiscal year, a consolidated balance sheet
and statement of stockholders’ equity as of the end of such fiscal year, and a
statement of cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with U.S. generally accepted accounting
principles and practices (“GAAP”) and
audited and certified by independent certified public accountants approved by
the Board of Directors of the Company (the “Board”).

     

    (b)           Quarterly
Reports.  Commencing with the fiscal quarter beginning April 1,
2009, as soon as practicable, and in any case within sixty (60) days after the
end of each of the first three quarters of each fiscal year, an unaudited
consolidated income statement for such quarter, and an unaudited statement of
cash flows for such quarter and an unaudited consolidated balance sheet as of
the end of such quarter, all certified by the Company’s Chief Financial Officer
(or if there is no such officer, the senior employee responsible for the
financial statements of the Company) prepared in accordance with GAAP (with the
exception that no notes need be attached to such statements and period-end audit
adjustments may not have been made) and setting forth in each case in
comparative form the figures from the previous fiscal quarter and from the
Annual Budget (as defined below).

     

    


    
      
        
           


        

        
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    (c)           Monthly
Reports.  As soon as practicable, and in any case within
forty-five (45) days after the end of each month, an unaudited consolidated
income statement and an unaudited statement of cash flows for such month, and an
unaudited consolidated balance sheet for and as of the end of such month,
together with a comparison to the Company’s Operating Plan and Budget figures
for such periods, all certified by the Company’s Chief Financial Officer (or if
there is no such officer, the senior employee responsible for the financial
statements of the Company) prepared in accordance with GAAP (with the exception
that no notes need be attached to such statements and period-end audit
adjustments may not have been made).

     

    (d)           Annual
Budget.  Within thirty (30) days prior to or after the
beginning of each fiscal year of the Company, a detailed annual operating plan
and budget for the next fiscal year approved by the Board  (the “Annual
Budget”).  The Company shall also furnish to such Major
Investor, within a reasonable time of its preparation, any material amendment to
the Annual Budget.

     

    1.2           Confidentiality.  Each Major
Investor agrees to hold all information received pursuant to this Agreement in
confidence, and not to use or disclose any of such information to any third
person, except to the extent such information may be made publicly available by
the Company; provided, however, that
notwithstanding the foregoing, (a) Major Investors may include summary financial
information concerning the Company and general statements concerning the nature
and progress of the Company’s business in their reports to their limited
partners and (b) such other information to the extent required by law, so long
as the Major Investor uses commercially reasonable efforts to obtain
confidential treatment of such disclosed information and gives the Company
written notice of such request or requirement as promptly as practicable so that
the Company may seek a protective order or other appropriate remedy and/or waive
compliance with this Section 1.2.

     

    1.3           Inspection
Rights.  The Company shall
permit each Major Investor, at such Major Investor’s expense, to visit and
inspect the Company’s properties, to examine its books of account and records
and to discuss the Company’s affairs, finances and accounts with its officers,
all at such reasonable times as may be requested by such Investor.

     

    1.4           Termination
of Certain Rights.  The Company’s
obligations under Sections 1.1 and 1.3 above will terminate upon the
closing of a Qualified IPO (as such term is defined in the Company’s Amended and
Restated Articles of Incorporation).

     

    1.5           Rule 144A
Information.  The Company
agrees to provide each Investor, upon request, with such written information as
may be required in order to permit such Investor to resell any shares of the
Company’s stock pursuant to Rule 144A promulgated under the Securities Act
of 1933, as amended (the “Securities
Act”).

     

    


    
      
        
           


        

        
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    2.           REGISTRATION
RIGHTS.

     

    2.1           Definitions.  For purposes of
this Section 2:

     

    (a)           Business
Day.  The term “business
day” means any day other than a Saturday, Sunday or any other day on
which commercial banks in the State of California are authorized or required by
law to remain closed.

     

    (b)           Registration.  The
terms “register,”
“registration”
and “registered”
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or ordering
of effectiveness of such registration statement.

     

    (c)           Registrable
Securities.  The term “Registrable
Securities” means:

     

    (1)           all
the shares of Common Stock of the Company issued or issuable upon the conversion
of any shares of Purchased Shares issued under the Purchase Agreements (the
“Conversion
Shares”) that are now owned or may hereafter be acquired by any Investor
or any Investor’s permitted successors and assigns; and

     

    (2)           any
shares of Common Stock of the Company issued (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued) as a
dividend or other distribution with respect to, or in exchange for or in
replacement of, all such shares of Common Stock described in clause (1) of this
subsection (c); excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which rights under this Section 2 are not assigned in accordance with this
Agreement or any Registrable Securities with respect to which, pursuant to
Section 2.11 hereof, the holders are no longer entitled to registration
rights pursuant to Sections 2.2, 2.3 or 2.4 hereof.

     

    (d)           Registrable Securities Then
Outstanding.  The number of shares of “Registrable
Securities then outstanding” shall mean the number of shares of Common
Stock which are Registrable Securities that are then (1) issued and
outstanding or (2) issuable pursuant to the exercise or conversion of then
outstanding and then exercisable and qualifying options, warrants or convertible
securities.

     

    (e)           Holder.  The
term “Holder”
means any person owning of record Registrable Securities or any assignee of
record of such Registrable Securities to whom rights set forth herein have been
duly assigned in accordance with this Agreement; provided, however, that for
purposes of this Agreement, a record holder of shares of Purchased Shares
convertible into such Registrable Securities shall be deemed to be the Holder of
such Registrable Securities; and provided, further, that the
Company shall in no event be obligated to register shares of Purchased Shares,
and that Holders of Registrable Securities will not be required to convert their
shares of Purchased Shares into Common Stock in order to exercise the
registration rights granted hereunder, until immediately before the closing of
the offering to which the registration relates.

     

    (f)           Form
S-3.  The term “Form S-3”
means such form under the Securities Act as is in effect on the Effective Date
or any successor registration form under the Securities Act subsequently adopted
by the SEC which permits inclusion or incorporation of substantial information
by reference to other documents filed by the Company with the SEC.

     

    


    
      
        
           


        

        
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    (g)           SEC.  The
term “SEC” or
“Commission”
means the U.S. Securities and Exchange Commission.

     

    2.2           Demand
Registration.

     

    (a)           Request by
Holders.  If the Company shall receive at any time after the
earlier of five (5) years from the Effective Date or six (6) months after the
effective date of the Qualified IPO, a written request from the Holders of at
least a majority of the Registrable Securities then outstanding (the “Initiating
Holders”) that the Company file a registration statement under the
Securities Act covering the registration of Registrable Securities pursuant to
this Section 2.2, then the Company shall, within twenty (20) days after the
receipt of such written request (except if Section 2.2(e)(2) is
applicable), give written notice of such request (the “Request
Notice”) to all Holders, and use its reasonable best efforts to effect,
as soon as practicable, the registration under the Securities Act of all
Registrable Securities which Holders request to be registered and included in
such registration by written notice given by such Holders to the Company within
fifteen (15) days after receipt of the Request Notice, subject only to the
limitations of this Section 2.

     

    (b)           Underwriting.  If
the Initiating Holders intend to distribute the Registrable Securities covered
by their request by means of an underwriting, then they shall so advise the
Company as a part of their request made pursuant to this Section 2.2 and the
Company shall include such information in the Request Notice.  In such
event, the right of any Holder to include his, her or its Registrable Securities
in such registration shall be conditioned upon such Holder’s participation in
such underwriting and the inclusion of such Holder’s Registrable Securities in
the underwriting (unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Holder) to the extent provided
herein.  All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement as reasonably
agreed upon between the Company and the managing underwriter or underwriters
selected for such underwriting by the Company and approved by the Initiating
Holders (such approval not to be unreasonably
withheld).  Notwithstanding any other provision of this Section 2.2,
if the underwriter(s) advise(s) the Company that marketing factors require a
limitation of the number of securities to be underwritten, then the Company
shall so advise all Holders of Registrable Securities that would otherwise be
registered and underwritten pursuant hereto, and the number of Registrable
Securities that may be included in the underwriting shall be reduced as required
by the underwriter(s) and allocated among the Holders of Registrable Securities
on a pro rata basis according to the number of Registrable Securities then
outstanding held by each Holder requesting registration (including the
Initiating Holders); provided, however, that, in the
case of an underwritten offering requested by Initiating Holders, the number of
shares of Registrable Securities to be included in such underwriting and
registration shall not be reduced unless all other securities of the Company and
any non-Initiating Holders are first entirely excluded from the underwriting and
registration.  Any Registrable Securities excluded or withdrawn from
such underwriting shall be excluded and withdrawn from the
registration.  If shares are so withdrawn from the registration and if
the number of shares of Registrable Securities to be included in such
registration was previously reduced as a result of marketing factors pursuant to
this Section 2.2, the Company shall then offer to all persons who have
retained the right to include securities in the registration the right to
include additional securities in the registration in an aggregate amount equal
to the number of shares so withdrawn, with such shares to be allocated among the
persons requesting additional inclusion, in the manner set forth
above.  For any Holder that is a partnership, corporation or limited
liability company, the partners, retired partners, members, retired members and
shareholders of such Holder, or the estates and family members of any such
partners, retired partners, members, retired members and shareholders and any
trusts for the benefit of any of the foregoing persons shall be deemed to be
collectively a single “Holder,” and any pro rata reduction with
respect to such “Holder” shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and individuals included in
such “Holder” as defined in this sentence.

     

    


    
      
        
           


        

        
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    (c)           Maximum Number of Demand
Registrations.  The Company is obligated to effect only two (2)
such registrations pursuant to this Section 2.2.

     

    (d)           Deferral.  Notwithstanding
the foregoing, if the Company shall furnish to the Initiating Holders a
certificate signed by the President or Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company (the “Board”),
it would be seriously detrimental to the Company and its stockholders for such
registration statement to be filed and it is therefore essential to defer the
filing of such registration statement, then the Company shall have the right to
defer such filing for a period of not more than ninety (90) days after receipt
of the request of the Initiating Holders; provided, however, that the
Company may not utilize this right more than once in any twelve (12) month
period.

     

    (e)           Restrictions.  The
Company shall not be obligated to effect any registrations:

     

    (1)           During
the one hundred eighty (180) day period commencing upon the closing of the
Qualified IPO; or

     

    (2)           During
the period starting with the date sixty (60) days prior to the Company’s good
faith estimate of the date of filing of a registration under the Securities Act
for the purposes of an initial public offering of securities of the
Company;  provided, however,
that in order to rely on this Section 2.2(e)(2), (i) the Company must have
delivered notice to the Initiating Holders, within twenty (20) days after the
receipt of their written request for a demand registration pursuant to
Section 2.2(a), of its intent to file a registration statement for an
initial public offering of securities of the Company within sixty (60) days;
(ii) the Company shall be actively employing in good faith all reasonable
efforts to cause such registration statement to become effective, and (iii) in
the case of a public offering other than a Qualified IPO, the Initiating Holders
shall be permitted to register such shares as requested to be registered
pursuant to Section 2.2 hereof subject to reduction by the underwriter only
to the extent provided in Section 2.3(b).

     

    (f)           Expenses.  All
expenses incurred in connection with a registration pursuant to this Section
2.2, including without limitation all registration and qualification fees,
printers’ and accounting fees, fees and disbursements of counsel for the
Company, and the reasonable fees and disbursements of one counsel for the
selling Holders (but excluding underwriters’ or brokers’ discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities) shall be borne by the Company.  Each Holder participating
in a registration pursuant to this Section 2.2 shall bear such Holder’s
proportionate share (based on the number of shares sold by such Holder over the
total number of shares included in such registration at the time it is declared
effective) of all
discounts, commissions or other amounts payable to underwriters or brokers in
connection with such offering.  Notwithstanding the foregoing, the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to this Section 2.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered, unless the Holders of a majority of the
Registrable Securities then outstanding agree to forfeit their right to one (1)
demand registration pursuant to this Section 2.2 (in which case such right shall
be forfeited by all Holders of Registrable Securities); provided, however,
that the Company must consent to such forfeiture, and provided, further, however, that, if at
the time of such withdrawal, the Holders have learned of a Material Adverse
Effect (as defined in the Series B Purchase Agreement) not known to the Holders
at the time of their request for such registration and have withdrawn their
request for registration with reasonable promptness after learning of such
Material Adverse Effect, then the Holders shall not be required to pay any of
such expenses and shall retain their demand registration rights pursuant to this
Section 2.2.

     

    


    
      
        
           


        

        
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    2.3           Piggyback
Registrations.

     

    (a)           At
any time prior to the termination of this Agreement, the Company shall notify
all Holders of Registrable Securities in writing at least thirty (30) days prior
to filing any registration statement under the Securities Act for purposes of
effecting a public offering of securities of the Company (including, but not
limited to, registration statements relating to secondary offerings of
securities of the Company, but excluding
registration statements relating to any registration under Section 2.2 or
2.4 of this Agreement or to any employee benefit plan or a corporate
reorganization or other transaction covered by Rule 145 promulgated under
the Securities Act, or a registration on any registration form which does not
permit secondary sales or does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of Registrable Securities) and will afford each such Holder an opportunity to
include in such registration statement all or any part of the Registrable
Securities then held by such Holder.  Each Holder desiring to include
in any such registration statement all or any part of the Registrable Securities
held by such Holder shall, within fifteen (15) days after receipt of the
above-described notice from the Company, so notify the Company in writing, and
in such notice shall inform the Company of the number of Registrable Securities
such Holder wishes to include in such registration statement.  If a
Holder decides not to include all of its Registrable Securities in any
registration statement thereafter filed by the Company, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein; provided, however,
that the Company shall have the right to postpone or withdraw any registration
effected pursuant to this Section 2.3 without obligation to the
Holders.

     

    (b)           Underwriting.  If
a registration statement under which the Company gives notice under this
Section 2.3 is for an underwritten offering, then the Company shall so
advise the Holders of Registrable Securities.  In such event, the
right of any such Holder’s Registrable Securities to be included in a
registration pursuant to this Section 2.3 shall be conditioned upon such
Holder’s participation in such underwriting and the inclusion of such Holder’s
Registrable Securities in the underwriting to the extent provided
herein.  All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
as reasonably agreed upon between the Company and the managing underwriter or
underwriter(s) selected for such underwriting.  Notwithstanding any
other provision of this Agreement, if the managing underwriter(s) determine(s)
in good faith that marketing factors require a limitation of the number of
shares to be underwritten, then the managing underwriter(s) may exclude shares
(including Registrable Securities) from the registration and the underwriting,
and the number of shares that may be included in the registration and the
underwriting shall be allocated, first, to the Company
and the Holders requesting inclusion of their Registrable Securities in such
registration statement on a pari passu basis, with the shares to be allocated to
such Holders on a pro rata basis based on the total number of Registrable
Securities held by each such Holder, and second, to any
stockholder of the Company (other than a Holder) on a pro rata
basis.  Notwithstanding the foregoing, however, the right of the
underwriters to exclude shares from the registration and underwriting as
described above shall be restricted so that the number of
Registrable Securities held by Holders included in any such registration is not
reduced in the aggregate below thirty percent (30%) of
the shares included in the registration, except for a registration relating to
the Company’s initial public offering, from which all Registrable Securities may
be excluded.  The number of Registrable Securities held by Initiating
Holders that may be sold in a registration pursuant to Section 2.2 above shall
be governed by Section 2.2(b) and not this Section 2.3.  If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice, given in accordance with Section 5.1
hereof, to the Company and the underwriter, delivered at least twenty (20) days
prior to the effective date of the registration statement.  Any
Registrable Securities excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration.  For any Holder that is
a partnership or corporation, the partners, retired partners and stockholders of
such Holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single “Holder,” and any pro rata reduction with respect to such
“Holder” shall be based upon the aggregate amount of shares carrying
registration rights owned by all entities and individuals included in such
“Holder” as defined in this sentence.

     

    


    
      
        
           


        

        
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    (c)           Expenses.  All
expenses incurred in connection with a registration pursuant to this
Section 2.3, including without limitation all registration and
qualification fees, printers’ and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel for the selling Holders (but excluding underwriters’ discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities) shall be borne by the Company.  Each Holder participating
in a registration pursuant to this Section 2.3 shall bear such Holder’s
proportionate share (based on the number of shares sold by such Holder over the
total number of shares included in such registration at the time it goes
effective) of all
discounts, commissions or other amounts payable to underwriters or brokers in
connection with such offering.

     

    2.4           Form S-3
Registration.  At any time prior
to the termination of this Agreement, in case the Company shall receive from any
Holder or Holders of Registrable Securities then outstanding a written request
or requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, then the Company will do the
following:

     

    (a)           Notice.  Within
twenty (20) days after receipt of such notice, give written notice of the
proposed registration and the Holder’s or Holders’ request therefor, and any
related qualification or compliance, to all other Holders of Registrable
Securities.

     

    


    
      
        
           


        

        
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    (b)           Registration.  As
soon as practicable, effect such registration and all such qualifications and
compliances as may be so requested and as would permit or facilitate the sale
and distribution of all or such portion of such Holder’s or Holders’ Registrable
Securities as are specified in such request, together with all or such portion
of the Registrable Securities of any other Holder or Holders joining in such
request as are specified in a written request given within fifteen (15) days
after receipt of such written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration, qualification or
compliance pursuant to this Section 2.4:

     

    (1)           if
Form S-3 is not available for such offering; or

     

    (2)           if
the Company shall furnish to the Holders a certificate signed by the President
or Chief Executive Officer of the Company stating that in the good faith
judgment of the Board, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the
Form S-3 registration statement no more than once during any twelve (12)
month period for a period of not more than ninety (90) days after receipt of the
request of the Holder or Holders under this Section 2.4.

     

    (c)           Expenses.  Subject
to the foregoing, the Company shall file a Form S-3 registration statement
covering the Registrable Securities and other securities so requested to be
registered pursuant to this Section 2.4 as soon as practicable after
receipt of the request or requests of the Holders for such
registration.  The Company shall pay all expenses incurred in
connection with each registration requested pursuant to this Section 2.4,
(excluding underwriters’ or brokers’ discounts and selling commissions and stock
transfer taxes applicable to the sale of Registrable Securities), including
without limitation all filing, registration and qualification, printers’ and accounting
fees and the reasonable fees and disbursements of one (1) counsel for the
selling Holder or Holders and counsel for the Company.  Each Holder
participating in a registration pursuant to this Section 2.4 shall bear
such Holder’s proportionate share (based on the number of shares sold by such
Holder over the total number of shares included in such registration at the time
it goes effective) of all discounts, commissions or other amounts payable to
underwriters or brokers in connection with such offering.

     

    (d)           Not Demand
Registration.  Form S-3 registrations shall not be deemed
to be demand registrations as described in Section 2.2 above.

     

    (e)           Underwriting.  If
any Form S-3 registration under this Section 2.4 is for an underwritten
offering, then the provisions of Section 2.2(b) shall apply.

     

    2.5           Obligations
of the Company.  Whenever required
to effect the registration of any Registrable Securities under this Agreement,
the Company shall, as expeditiously as
reasonably possible:

     

    (a)           Prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use commercially reasonable efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred eighty (180) days or
until the Holders have completed the distribution described in the registration
statement relating thereto, whichever first occurs.

     

    


    
      
        
           


        

        
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    (b)           Prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement
as may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement and, in connection with any registration on Form S-3 pursuant to
Section 2.4 above, use commercially reasonable efforts to timely file all
reports required under the Securities Exchange Act of 1934, as amended, (the “Exchange
Act”) in order to maintain the right to continue to use such Form and to
maintain such registration in effect.

     

    (c)           Furnish
to the Holders such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as they may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by them that are included in
such registration.

     

    (d)           Register
and qualify the securities covered by such registration statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders (and maintain such registrations and qualifications
effective for the applicable period of time set forth in Section 2.5(a)
above, and to do any and all other acts and things reasonably necessary or
advisable to enable such Holders to consummate the disposition in such
jurisdictions of such shares), provided that the Company shall not be required
in connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions.

     

    (e)           In
the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with
the managing underwriter(s) of such offering.

     

    (f)           Notify
each Holder of Registrable Securities covered by such registration statement at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.  The
Company will use commercially reasonable efforts to amend or supplement such
prospectus in order to cause such prospectus to not include any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing.

     

    (g)           Use
commercially reasonable efforts to cause all such Registrable Securities
registered pursuant hereunder to be listed on each securities exchange or
nationally recognized quotation system on which similar securities issued by the
Company are then listed (or, if not then listed, on such exchange(s) as
requested by a majority of the participating Holders or, in the case of
registrations pursuant to Section 2.2 above, the Initiating Holders and
subject to the approval of the Company and the managing underwriters, if
any).

     

    (h)           Provide
a transfer agent and registrar for all Registrable Securities registered
pursuant hereunder and a CUSIP number for all such Registrable Securities, in
each case not later than the effective date of such registration.

     

    


    
      
        
           


        

        
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    (i)           Furnish,
at the request of any Holder requesting registration of Registrable Securities,
on the date that such Registrable Securities are delivered to the underwriters
for sale, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes
effective:  (1) an opinion, dated as of such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (2) a “comfort” letter dated as
of such date, from the independent certified public accountants of the Company,
in form and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders requesting registration of Registrable
Securities.

     

    (j)           Otherwise
use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve (12) months beginning with the first day of the Company’s first
full calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy in all respects the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder.

     

    (k)           In
the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any
related prospectus or suspending the qualification of any Registrable Securities
included in such registration statement for sale in any jurisdiction, the
Company shall use its commercially reasonable efforts promptly to obtain the
withdrawal of such order.

     

    2.6           Furnish
Information.  It shall be a
condition precedent to the obligations of the Company to take any action
pursuant to Sections 2.2, 2.3 or 2.4 that the selling Holders shall furnish
to the Company such information regarding themselves, the Registrable Securities
held by them, and the intended method of disposition of such securities as shall
be required to timely effect the registration of their Registrable
Securities.

     

    2.7           Delay of
Registration.  No Holder shall
have any right to obtain or seek an injunction restraining or otherwise delaying
any such registration as the result of any controversy that might arise with
respect to the interpretation or implementation of this
Section 2.

     

    2.8           Indemnification.  In the event any
Registrable Securities are included in a registration statement under
Sections 2.2, 2.3 or 2.4:

     

    (a)           By the
Company.  To the extent permitted by law, the Company will
indemnify and hold harmless each Holder, the partners, officers and directors,
legal counsel and accountants of such Holder, any underwriter (as defined in the
Securities Act) for such Holder and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages, or liabilities (joint or several) to which
they may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively, the “Violations”
and, individually, a “Violation”):

     

    


    
      
        
           


        

        
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    (1)           any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein, any free-writing prospectus as defined in
Rule 405 promulgated under the Securities Act or any amendments or
supplements thereto; or

     

    (2)           the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading;
or

     

    (3)           any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any federal or state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any federal or state
securities law in connection with the offering covered by such registration
statement.

     

    The
Company will reimburse each such Holder, partner, officer or director, legal
counsel, accountant, underwriter or controlling person for any legal or other
expenses reasonably incurred by them, within three months after a request for
reimbursement has been received by the Company, in connection with investigating
or defending any such loss, claim, damage, liability or action; provided however, that the
indemnity agreement contained in this subsection 2.8(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such
case for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, director, legal
counsel, accountant, underwriter or controlling person of such
Holder.

     

    (b)           By Selling
Holders.  To the extent permitted by law, each selling Holder
will indemnify and hold harmless the Company, each of its directors, each of its
officers who have signed the registration statement, legal counsel and
accountants, and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder’s
partners, directors or officers or any person who controls such Holder within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities (joint or several) to which the Company or any
such director, officer, legal counsel, accountant, controlling person,
underwriter or other such Holder, partner or director, officer or controlling
person of such other Holder may become subject under the Securities Act, the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereto) arise out of or are based
upon any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder under an
instrument duly executed by such Holder or such Holder’s representative and
stated to be furnished expressly for use in connection with such
registration.  Each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer, legal
counsel, accountant, controlling person, underwriter or other Holder, partner,
officer, director or controlling person of such other Holder in connection with
investigating or defending any such loss, claim, damage, liability or action
within three months after a request for reimbursement has been received by the
indemnifying Holder, provided, however, that the
indemnity agreement contained in this subsection 2.8(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder, which consent
shall not be unreasonably withheld, nor will the Holder be liable to the extent
that any such loss, claim, damage, liability or action arises out of or is based
on any untrue statement or omission based upon written information furnished to
the Holder by the Company; and provided further, that the
total amounts payable in indemnity by a Holder under this Section 2.8(b) in
respect of any Violation shall not exceed the net proceeds received by such
Holder in the registered offering out of which such Violation
arises.

     

    


    
      
        
           


        

        
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    (c)           Notice.  Promptly
after receipt by an indemnified party under this Section 2.8 of notice of
the commencement of any action (including any governmental action), such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section >2.8, deliver to the indemnifying
party a written notice of the commencement thereof.  The indemnifying
party shall have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential conflict of interests between such
indemnified party and any other party represented by such counsel in such
proceeding.  The failure to deliver written notice to the indemnifying
party within a reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
Section 2.8, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 2.8.  No
Indemnifying Party, in the defense of any such claim or litigation, shall except
with the consent of each Indemnified Party, consent to entry of any judgment or
enter into any settlement that does not include as an unconditional term thereof
the giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation.  Each
Indemnified Party shall furnish such information regarding itself or the claim
in question as the Indemnifying Party may reasonably request in writing and as
shall be reasonably required in connection with defense of such claim and
litigation resulting therefrom.

     

    (d)           Contribution.  If
the indemnification provided for in this Section 2.8 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any loss, liability, claim, damage or expense referred to herein, then the
indemnifying party, in lieu of indemnifying the indemnified party, shall
contribute to the amount paid or payable by such indemnified party with respect
to such loss, liability, claim, damage or expense in the proportion that is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions that resulted
in such loss, liability, claim, damage or expense, as well as any other relevant
equitable considerations.  The relative fault of the indemnifying
party and the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.  In any such case, (A) no such Holder
will be required to contribute any amount in excess of the public offering price
of all such Registrable Securities offered and sold by such Holder pursuant to
such registration statement; and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.

     

    


    
      
        
           


        

        
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    (e)           Conflict with Underwriting
Agreement.  Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement will control.

     

    (f)           Survival.  The
obligations of the Company and Holders under this Section 2.8 shall survive
the completion of any offering of Registrable Securities in a registration
statement, and otherwise.

     

    2.9           “Market
Stand-Off” Agreement.  Each Holder
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 (the “Lockup
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 Holder 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.  The foregoing provisions of this Section 2.9 shall
apply only to the Company’s initial public offering of equity securities, shall
not apply to the sale of any shares to an underwriter pursuant to an
underwriting agreement and shall only be applicable to Holders if all officers,
directors and greater than one percent (1%) stockholders of the Company enter
into similar agreements.  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 and to impose stop
transfer instructions with respect to the Registrable Securities and such other
shares of stock of each Holder (and the shares or securities of every other
person subject to the foregoing restriction) until the end of such
period.  The Company shall use commercially reasonable efforts to
obtain the consent of the underwriter(s) to decrease the Lock-Up Period by
providing for periodic releases of portions of the securities restricted
pursuant to this Section 2.9 and to have the Lock-Up Period terminate if
the trading price of the Common Stock after the effective date of the initial
public offering exceeds a certain threshold for a certain time
period.  Any discretionary waiver, release or termination of the
restrictions of any or all such agreements by the Company or the underwriters
shall apply pro rata to all Holders subject to such agreements, based on the
number of shares subject to such agreements.

     

    2.10           Rule 144
Reporting.  With a view to
making available the benefits of certain rules and regulations of the Commission
which may at any time permit the sale of the Registrable Securities to the
public without registration, after such time as a public market exists for the
Common Stock of the Company, the Company agrees to use its reasonable best
efforts to:

     

    


    
      
        
           


        

        
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    (a)           Make
and keep public information available, as those terms are understood and defined
in Rule 144 under the Securities Act, at all times after the effective date
of the first registration under the Securities Act filed by the Company for an
offering of its securities to the general public;

     

    (b)           File
with the Commission in a timely manner all reports and other documents required
of the Company under the Securities Act and the Exchange Act (at any time after
it has become subject to such reporting requirements); and

     

    (c)           So
long as a Holder owns any Registrable Securities, to furnish to the Holder
forthwith upon request a written statement by the Company as to its compliance
with the reporting requirements of said Rule 144 (at any time after ninety
(90) days after the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
the reporting requirements of the Exchange Act), a copy of the most recent
annual or quarterly report of the Company not readily available via the
Commission’s EDGAR system, and such other reports and documents of the Company
as a Holder may reasonably request in availing itself of any rule or regulation
of the Commission allowing a Holder to sell any such securities without
registration (at any time after the Company has become subject to the reporting
requirements of the Exchange Act).

     

    2.11           Termination
of the Company’s Obligations.  This agreement
and all obligations pursuant to Sections 2.2 through 2.4 shall terminate
upon the earliest to occur of the date (a) that is seven (7) years after the
closing date of the Company’s Qualified IPO; (b) on which any Registrable
Securities proposed to be sold by a Holder in a registration pursuant to
Section 2.2, 2.3 or 2.4 may be sold by the Holders without registration and
without regard to any volume limitation under Rule 144 under the Securities
Act or any other rule of similar effect, or (c) by which all of the Registrable
Securities have been sold pursuant to a registration statement.

     

    2.12           Limitations
on Subsequent Registration Rights.  From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the Holders of a majority of the Registrable Securities then
outstanding, enter into any agreement with any holder or prospective holder of
any securities of the Company which would allow such holder or prospective
holder (a) to include such securities in any registration filed under
Section 2.3 hereof, unless under the terms of such agreement, such holder
or prospective holder may include such securities in any such registration only
to the extent that the inclusion of his, her or its securities will not reduce
the amount of the Registrable Securities of the Holders which is included, or
(b) to make a demand registration.

     

    3.           RIGHT OF FIRST
REFUSAL.

     

    3.1           General.  Each Major
Investor (as defined in Section 1.1) and any party to
whom such Major Investor’s rights under this Section 3 have been duly
assigned in accordance with Section 4.1(b) (each such Major
Investor or assignee being hereinafter referred to as a “Rights
Holder”) has the right of first refusal to purchase up to such Rights
Holder’s Pro Rata Share (as defined below), of all (or any part) of any “New
Securities” (as defined in Section 3.2) that the Company may from time to
time issue after the date of this Agreement, provided, however, that if such Rights Holder cannot
demonstrate to the Company’s reasonable satisfaction that such Rights Holder is
at the time of the proposed issuance of such New Securities an “accredited
investor” as such term is defined in Regulation D under the Securities Act,
as then in effect, then such Rights Holder shall be permitted to purchase such
New Securities only if such Rights Holder agrees to reimburse the Company for
any costs it may incur (including attorneys’ fees) for the preparation by the
Company of the disclosure information necessary, in the Company's opinion,
to satisfy any requirements of federal and state securities laws applicable
to the transaction arising solely from the status of the Rights Holder as a
prospective purchaser.  Each Rights Holder shall be entitled to assign
or apportion the right of first offer hereby granted it among itself and its
Affiliates (as defined in Section 5.6 below) in such proportions as it
deems appropriate.  A Rights Holder’s “Pro Rata
Share” for purposes of this right of first refusal is the ratio of
(a) the number of Registrable Securities as to which such Rights Holder is
the Holder (and/or is deemed to be the Holder under Section 2.1(e)), to
(b) a number of shares of Common Stock of the Company equal to the sum of
(1) the total number of shares of Common Stock of the Company then
outstanding plus, including all outstanding options, warrants and other
securities exercisable for or convertible into Common Stock and (2) the
total number of shares of Common Stock of the Company into which all then
outstanding shares of Preferred Stock of the Company are then convertible,
including all outstanding options, warrants and other securities exercisable for
or convertible into Preferred Stock.

     

    


    
      
        
           


        

        
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    3.2           New
Securities.  “New
Securities” shall mean any Common Stock or Preferred Stock of the
Company, whether now authorized or not, and rights, options or warrants to
purchase such Common Stock or Preferred Stock, and securities of any type
whatsoever that are, or may become, convertible or exchangeable into such Common
Stock or Preferred Stock; provided, however, that the
term “New Securities” does not include:

     

    (a)           shares
of Company’s Common Stock (or options or rights therefor) granted or issued
hereafter to employees, officers, directors or other persons performing services
for the Company, directly or pursuant to stock purchase or stock option plans or
agreements or other incentive stock arrangements that are approved by the
Board;

     

    (b)           shares
of the Company’s Common Stock or Preferred Stock (and/or warrants or options
therefor), issued for consideration other than cash pursuant to a bona fide
merger, consolidation, acquisition or similar business combination, the terms of
which have been approved by the Board;

     

    (c)           shares
of Common Stock issued or issuable upon conversion of then outstanding shares of
Preferred Stock;

     

    (d)           
shares of Common Stock or Preferred Stock issuable upon exercise of any
warrants, notes or other rights to purchase any securities of the Company
outstanding as of the date hereof and any securities issuable upon the
conversion thereof;

     

    (e)           shares
of the Company’s Common Stock or Preferred Stock issued in connection with any
stock split or stock dividend or recapitalization; and

     

    (f)           shares
of the Company’s Common Stock issued or issuable by the Company to the public
pursuant to a registration statement filed under the Securities Act which is a
Qualified IPO; and

     

    


    
      
        
           


        

        
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    (g)           shares
of the Company’s Common Stock or Preferred Stock which, with the unanimous
approval of the Board, are not offered to any existing stockholders of the
Company.

     

    3.3           Procedures.  In the event that
the Company proposes to undertake an issuance of New Securities, the Company
shall first offer such New Securities to each Rights Holder and the Founders (as
defined in the Series B Purchase Agreement) in accordance with the following
provisions:

     

    (a)           The
Company shall give to each Rights Holder and Founder a written notice of its
intention to issue New Securities (the “Notice”),
describing the type of New Securities and the price and the general terms upon
which the Company proposes to issue such New Securities given in accordance with
Section 5.1 hereof.

     

    (b)           Each
Rights Holder shall have twenty (20) days from delivery of such Notice to agree
in writing to purchase such Rights Holder’s Pro Rata Share of such New
Securities for the price and upon the general terms specified in the Notice by
giving written notice to the Company and stating therein the quantity of New
Securities to be purchased (not to exceed such Rights Holder’s Pro Rata
Share).  If any Rights Holder fails to so agree in writing within such
twenty (20) day period to purchase such Rights Holder’s full Pro Rata Share of
an offering of New Securities (a “Nonpurchasing
Holder”), then such Nonpurchasing Holder shall forfeit the right
hereunder to purchase that part of its Pro Rata Share of such New Securities
that he, she or it did not so agree to purchase.

     

    (c)           The
Company shall promptly, in writing, inform each Rights Holder that elects to
purchase all the New Securities available to it (a “Fully-Exercising
Holder”) of any other Rights Holder’s failure to do
likewise.  During the ten (10) day period commencing after such
information is given, each Fully-Exercising Holder may elect to purchase that
portion of the New Securities which Nonpurchasing Holders were entitled to
subscribe but that were not subscribed for by the Nonpurchasing Holders that is
equal to the proportion that such Fully-Exercising Holder’s Pro Rata Share bears
to the aggregate Pro Rata Shares of all Fully-Exercising Holders.

     

    3.4           Failure
to Exercise.  The Company shall
promptly, in writing, inform each Founder of failure of the Rights Holders to
exercise in full the right of first refusal within the periods provided in
Section 3.3.  During the ten (10) day period commencing after
such notice is given, the Founders  shall have the right to purchase,
on a pro rata basis, that portion of the New Securities that were not subscribed
for by the Rights Holders as provided in Section 3.3.  In the event
that the Founders fail to exercise in full the right of first refusal provided
in this Section 3.4 within ten (10) days, then the Company shall have one
hundred twenty (120) days thereafter to sell the New Securities with respect to
which neither the Rights Holders’ nor the Founders’ rights of first refusal
hereunder were exercised, at a price and upon general terms not materially more
favorable to the purchasers thereof than specified in the Notice.  In
the event that the Company has not issued and sold the New Securities within
such one hundred twenty (120) day period, then the Company shall not thereafter
issue or sell any New Securities without again first offering such New
Securities to the Rights Holders pursuant to this Section 3.

     

    3.5           Termination.  This right of
first refusal shall terminate at the earliest to occur of (a) the closing
of a Qualified IPO, (b) the date when the Company first becomes subject to
the periodic reporting requirements of Sections 12(g) or 15(d) of the
Exchange Act, or (c) the consummation of (1) the acquisition of all or
substantially all the assets of the Company or (2) a reorganization,
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 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).

     

    


    
      
        
           


        

        
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    4.           ASSIGNMENT AND
AMENDMENT.

     

    4.1           Assignment.  Notwithstanding
anything herein to the contrary:

     

    (a)           Information
Rights.  The rights of an Investor under Section 1 hereof
may be assigned to Affiliates (as defined in Section 5.6 below) of such
Investor and/or to a person who acquires from an Investor (or an Investor’s
permitted assigns) at least that minimum number of shares of Purchased Shares
and/or an equivalent number (on an as-converted basis) of Conversion Shares
described in Section 1.1 hereof.

     

    (b)           Registration Rights; Refusal
Rights.  The registration rights of a Holder under
Section 2 hereof and the rights of first refusal of a Rights Holder under
Section 3 may be assigned only to a person who after such assignment holds at
least ten percent (10%) of the Registrable Securities and/or an equivalent
number (on an as-converted basis) of Registrable Securities issued upon
conversion thereof; provided, however, that no
person may be assigned any of the foregoing rights unless (i) the Company
is given written notice by the assigning person at the time of such assignment
stating the name and address of the assignee and identifying the securities of
the Company as to which the rights in question are being assigned, and
(ii) such transferee is determined by the Board to not be a competitor of
the Company; provided further that any such
assignee shall receive such assigned rights subject to all the terms and
conditions of this Agreement, including without limitation the provisions of
this Section 4, and shall agree in writing, in a form acceptable to the
Company, to be bound by such Agreement.  Notwithstanding the
foregoing, assignment of the rights in Sections 2 and 3 hereof may be made
without the Company’s consent or obtaining the minimum number of shares of
Registrable Securities noted above if the assignment is to an Affiliate of the
Holder or the Rights Holder.

     

    4.2           Amendment
and Waiver of Rights.  This Agreement
may be amended only by a written agreement executed by (i) the Company and
(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); 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.

     

    


    
      
        
           


        

        
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    5.           GENERAL
PROVISIONS.

     

    5.1           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:  (i) at the time of personal delivery, if delivery is
in person; (ii) 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; (iii) 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 (iv) 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 as follows, 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:

     

    (a)           if
to an Investor, at such Investor’s 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.

     

    (b)           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.

     

    5.2           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.

     

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

     

    5.4           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 shall 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 all parties agree to
substitute such provision(s) through good faith negotiations.

     

    


    
      
        
           


        

        
          -18-

          
            

          

        

        
           


        

      

    

    


    5.5           Third
Persons.  Except as
provided in Section 2.9, nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereto and their
successors and assigns, any rights or remedies under or by reason of this
Agreement.

     

    5.6           Successors
And Assigns.  Subject to the
provisions of Section 4.1, this Agreement, and the rights and obligations
of the parties hereunder, will be binding upon and inure to the benefit of their
respective successors, assigns, heirs, executors, administrators and legal
representatives.  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 who, directly or indirectly, controls, is controlled by or is
under common control with such Investor, including, without limitation, any
partner, officer, director, member, manager or employee of such 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.

     

    5.7           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.

     

    5.8           Counterparts.  This Agreement
may be executed in any number of counterparts (including by facsimile or email with
scanned attachment), each of which when so executed and delivered will be
deemed an original, and all of which together shall constitute one and the same
agreement.

     

    5.9           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.

     

    


    
      
        
           


        

        
          -19-

          
            

          

        

        
           


        

      

    

    


    5.10           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 5.9, 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 5.9 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.

     

    5.11           Adjustments
for Stock Splits, Etc.  Wherever in this
Agreement there is a reference to a specific number of shares of Common Stock or
Preferred Stock of the Company of any class or series, then, upon the occurrence
of any subdivision or combination of such class or series of stock, the specific
number of shares so referenced in this Agreement shall automatically be
proportionally adjusted to reflect the effect on the outstanding shares of such
class or series of stock by such subdivision or combination.

     

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

     

    5.13           Further
Assurances.  The parties agree
to execute such further documents and instruments and to take such further
actions as may be reasonably necessary to carry out the purposes and intent of
this Agreement.

     

    


    
      
        
           


        

        
          -20-

          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the parties have executed
this Amended and Restated Investors’ Rights 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 Investors' Rights Agreement]

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the parties have executed
this Amended and Restated Investors’ Rights 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 V LLC

            


    

    
      	
               
      

            	
              Its
      Sole Managing Member

            


    

     

    
       

      
        
          	
                   
      

                	
                  By:

                	
                  /s/ James R. Newell        

                
	 	 	
                  Jim
      Newell

                  Managing
      Member

                
	 	 	 


        

      

      

         

        [Signature Page
to Amended and Restated Investors' Rights Agreement]

      

    

    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the parties have executed
this Amended and Restated Investors’ Rights 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 Investors' Rights Agreement]

    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, the parties have executed
this Amended and Restated Investors’ Rights Agreement as of the date first
written above.

     

    INVESTORS:

    


    THE ENVIRONMENT AGENCY ACTIVEPENSION
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 MASTERCLEAN 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 MASTERCLEAN 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 Investors' Rights Agreement]

    

    
     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    EXHIBIT
A

    


    INVESTORS

     

    
      
        	
                Investor

              	
                Series A Preferred
      Stock

              	
                Series B Preferred
      Stock

              
	
                ALTIRA
      TECHNOLOGY FUND V L.P.

                 

              	
                --

              	
                5,813,953

              
	
                NGEN II, L.P.

                1114 State Street, Suite
      247

                Santa Barbara, CA
      93101

                Attn.: Steve
      Parry

                Fax: (805)
      564-1669

              	
                2,574,456

              	
                5,963,921

              
	
                THE
      ENVIRONMENT AGENCY ACTIVE PENSION FUND

                c/o
      Private Equity Team

                Robeco
      Alternative Investments

                Coolsingel
      120

                3011
      AG Rotterdam

                The
      Netherlands

                Attn:
      Rhea J. Hamilton

                Fax:
      +31 (0)10 224 2181

              	
                514,891

              	
                1,192,434

              
	
                STICHTING
      CUSTODY MASTER CLEANTECH II (EUR)

                c/o
      Private Equity Team

                Robeco
      Alternative Investments

                Coolsingel
      120

                3011
      AG Rotterdam

                The
      Netherlands

                Attn:
      Rhea J. Hamilton

                Fax:
      +31 (0)10 224 2181

              	
                1,312,972

              	
                3,041,357

              
	
                STICHTING
      CUSTODY MASTER CLEANTECH II (USD)

                c/o
      Private Equity Team

                Robeco
      Alternative Investments

                Coolsingel
      120

                3011
      AG Rotterdam

                The
      Netherlands

                Attn:
      Rhea J. Hamilton

                Fax:
      +31 (0)10 224 2181

              	
                746,593

              	
                1,729,399

              
	
                TOTAL:

              	
                5,148,912

              	
                17,741,062