Unassociated Document


    


    AMENDED
AND RESTATED VOTING AGREEMENT

     

    This
Amended and Restated Voting Agreement (this “Agreement”)
is made and entered into as of April 17, 2009, (the “Effective
Date”) by and among Energy Power and Solutions, Inc., a California
corporation (the “Company”),
the parties listed on Exhibit A
attached hereto (the “Investors”)
and the shareholders listed on Exhibit B
attached hereto (the “Shareholders”).  The
Investors and the Shareholders are sometimes hereinafter collectively referred
to as the “Holders.”

     

    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 the 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 “Preferred
Stock”) 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, as amended from time to time (the “Series B Purchase
Agreement,” and collectively with the Series A Purchase Agreement, the
“Purchase
Agreements”); and

     

    WHEREAS, as an inducement to
the Investors to purchase the Series B Stock pursuant to the Series B Purchase
Agreement, the Investors, the Shareholders and the Company desire to enter into
this Agreement to set forth their agreements and understandings with respect to
how shares of the Company’s capital stock held by them will be voted in any
election of directors of the Company and on certain other matters.

     

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

     

    1.           CAPITAL
STOCK.  The Holders
expressly agree that the terms and restrictions of this Agreement shall apply to
all shares of capital stock (including, but without limitation, all classes of
common, preferred, voting and nonvoting capital stock) of the Company which any
of them now owns or hereafter acquires by any means, including without
limitation by purchase, assignment, conversion of convertible securities or
operation of law, or as a result of any stock dividend, stock split,
reorganization, reclassification, whether voluntary or involuntary, or other
similar transaction, and to any shares of capital stock of any successor in
interest of the Company, whether by sale, merger, consolidation or other similar
transaction, or by purchase, assignment or operation of law (the “Company
Stock”).

     

    2.           ELECTION OF BOARD OF
DIRECTORS.

     

    2.1            Size of
Board of Directors.  During the term
of this Agreement, each Holder, in his/her/its capacity as a shareholder, agrees
to vote all Company Stock now or hereafter directly or indirectly owned (of
record or beneficially) by such Holder to maintain the authorized number of
members of the Board at five (5) directors. 

     

    


    
      
        
           


        

        
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    2.2            Voting;
Board Composition.  During the term
of this Agreement, each Holder agrees to vote (or consent pursuant to an action
by written consent of the shareholders of the Company), in any election of
directors, all Company Stock now or hereafter directly or indirectly owned of
record or beneficially by such Holder, or to cause such shares of Company Stock
to be voted, in such manner as may be necessary to elect (and maintain in
office) as members of the Company’s Board of Directors (the “Board”),
the following five (5) individuals:

     

    (a)           four (4)
individuals designated from time to time in a writing delivered to the Company
and signed by a duly authorized representative of the holders of a majority of
the then issued and outstanding shares Preferred Stock (voting together as a
single class), (i) one (1) of whom shall be designated by Altira Technology Fund
V L.P. (“Altira”)
for so long as Altira and its Affiliates continue to own beneficially at least
ten percent (10%) of the shares of Preferred Stock (on an as-converted to
Common Stock basis) that Altira and its Affiliates own on the date of this
Agreement, (ii) one (1) of whom shall be designated by NGEN II, L.P. (“NGEN”)
for so long as NGEN and its Affiliates continue to own beneficially at least ten
percent (10%) of the shares of Preferred Stock (on an as-converted to
Common Stock basis) that NGEN and its Affiliates own on the date of this
Agreement, (iii) one (1) of whom shall be designated by Robeco Institutional
Asset Management B.V. or its Affiliate (“Robeco”)
for so long as Robeco and its Affiliates continue to own beneficially at least
ten percent (10%) of the shares of Preferred Stock (on an as-converted to
Common Stock basis) that Robeco and its Affiliates own on the date of this
Agreement (collectively, the Altira, NGEN and Robeco designees shall be referred
to as the “Preferred
Designees”); and (iv) one (1) individual who meets the current standards
for “independence” set forth in the Nasdaq Marketplace Rules (the “Independent
Designee”).

     

    (b)           one
individual designated from time to time in a writing delivered to the Company
and signed by a duly authorized representative of the holders of at least a
majority of the then issued and outstanding shares of Common Stock (excluding
for this purpose any shares of Common Stock issued upon exercise of the
conversion rights of the Preferred Stock), voting together as a single class,
who is the Corporation’s then-current Chief Executive Officer (the “Common
Designee”); provided,
however, that in
the event that the then-current Chief Executive Officer owns less than 1.0% of
the outstanding shares of capital stock of the Company on a fully diluted basis,
the Common Designee shall be an individual who owns at least 1.0% of the
outstanding shares of capital stock of the Company on a fully diluted
basis.

     

    2.3            Initial
Board Members; Board
Observers.  The
initial Altira designee will be Jim Newell; the initial NGEN designee will be
Steven Parry; the initial Robeco designee will be Rhea Hamilton; the initial
Common Designee will be Jay Zoellner, and the initial Independent Designee will
be Charlie Oliver.  As long as each of Altira, NGEN and Robeco
beneficially owns any shares of Preferred Stock, the Company shall invite one
representative of each of Altira, NGEN and Robeco to attend all meetings of the
Board in a nonvoting observer capacity and, in this respect, shall give such
representative copies of all notices, minutes, consents and other materials that
it provides to its directors; provided, however,
that such representative shall agree to keep such information confidential and
not to disclose it to any third party other than such representative’s partners
and advisors (provided that such parties are also subject to a duty of
confidentiality to Company with respect to information disclosed at the meetings
of the Board).  In addition, as long as each of Shiva Subramanya
(“Subramanya”)
and Staffan Akerstrom (“Akerstrom”)
are currently employed by the Company and each owns at least 1.0% of the
outstanding shares of capital stock of the Company on a fully diluted basis, the
Company shall invite Subramanya and Akerstrom to attend all meetings of the
Board in a nonvoting observer capacity and, in this respect, shall give such
representative copies of all notices, minutes, consents and other materials that
it provides to its directors; provided, however,
that such representative shall agree to keep such information confidential and
not to disclose it to any third party other than such representative’s partners
and advisors (provided that such
parties are also subject to a duty of confidentiality to Company with respect to
information disclosed at the meetings of the Board).

     

    


    
      
        
           


        

        
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    2.4            Changes
in Board Designees.  From time to time
during the term of this Agreement, the shareholders or persons entitled to
designate a director pursuant to Section 2.2 (each a “Designator”
and collectively, the “Designators”)
may, in their sole discretion, as applicable:

     

    (a)           elect
to remove from the Board any incumbent Board designee who occupies a Board seat
for which such Designator or Designators are entitled to designate the Board
designee under Section 2.2, provided, however,
that in the event the Company’s then-current Chief Executive Officer ceases to
be employed by the Company, he or she may be removed from the Board by the vote
of a majority of the remaining directors; and/or

     

    (b)           designate
a new Board designee for election to a Board seat for which such Designator or
Designators are entitled to designate the Board designee under Section 2.2
(whether to replace a prior Board designee or to fill a vacancy in such Board
seat due to death, termination, removal or resignation); provided such removal
and/or designation of a Board designee is approved in a writing signed by
Designators who are entitled to designate such Board designee under
Section 2.2, in which case such election to remove a Board designee and/or
elect a new Board designee will be binding on all such
Designators.  In the event of such a removal and/or designation of a
Board designee under this Section 2.4, the Holders shall vote their shares
of the Company Stock as provided in Section 2.2 to
cause:  (a) the removal from the Board of the Board designee or
designees so designated for removal by the appropriate Designators or
Designators; and (b) the election to the Board of any new Board designee or
designees so designated for election to the Board by the appropriate Designator
or Designators.

     

    2.5            Notice;
Covenant to Vote in Accord.  The Company shall
promptly give each of the Holders written notice of any change in composition of
the Board and of any proposal by a Designator or Designators to remove or elect
a new Board designee as described in this Section 2 above.  In any
election of directors pursuant to this Section 2, the Holders shall vote
their shares of Company Stock in a manner sufficient to elect to the Board the
individuals to be elected thereto as provided in this
Section 2.

     

    2.6            Grant of
Proxy.  Upon the failure
of any party to vote their Company Stock in accordance with the terms of this
Agreement within five (5) days of the Company’s or any other party’s written
request for such party’s written consent or signature, such party hereby grants
to the Company’s Secretary a proxy coupled with an interest in all Company Stock
owned by such party, which proxy shall be irrevocable until this Agreement
terminates pursuant to its terms or this Section 2.6 is amended to remove such
grant of proxy in accordance with Section 7.12 hereof, to vote all such
Company Stock in the manner provided in Section 2 hereof and to execute all
appropriate instruments consistent with this Agreement.  The proxy
given with respect hereto, so long as any party hereto is an individual, will
surivive the death, incompetency and disability of such party or any other
individual holder of shares of Company Stock and, so long as any party hereto is
an entity, will survive the merger or reorganization of such party or any other
entity holding any shares of Company Stock of each Holder.

     

    


    
      
        
           


        

        
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    2.7           Section
706.  The Holders and the Company intend this Section 2 to
constitute an enforceable voting agreement under Section 706 of the California
Corporation Code.

     

    3.           DRAG-ALONG
RIGHTS

     

    3.1            Definitions.  A “Sale of the
Company” means (a) any merger, acquisition, reorganization or sale
of voting control of the Company in which the Holders of the Company Stock
immediately prior to the transaction do not own, in substantially equivalent
proportions as before, a majority of the outstanding shares of the surviving
entity (a “Sale of Voting
Control Transaction”) or (b) a transaction that qualifies as a
“Deemed
Liquidation” as defined in the Company’s Amended and Restated Articles of
Incorporation as in effect on the date hereof and as may be amended from time to
time (the “Restated
Articles”).  “Qualified
IPO” shall have the meaning set forth in the Restated
Articles.

     

    3.2            Actions
to be Taken Upon Approval of a Sale of the Company.  After the date
that is five (5) years after the Effective Date, in the event that the holders
of at least sixty-six and two-thirds percent (66 2/3%) (or such higher
percentage as set forth in the protective provisions in the Restated Articles,
as such provisions may be amended from time to time) of the outstanding shares
of Preferred Stock (considered as a single class voting on an as-converted to
Common Stock basis) (the “Selling
Investors”) and a majority of the members of the Board, approve a Sale of
the Company in writing, specifying that this Section 3 shall apply to such
transaction, then each Shareholder hereby agrees:

     

    (a)           if
such transaction requires shareholder approval, with respect to all Company
Stock that such Shareholder owns or over which such Shareholder otherwise
exercises voting power, to vote (in person, by proxy or by action by written
consent, as applicable) all such Company Stock in favor of, and adopt, such Sale
of the Company and to vote in opposition to any and all other proposals that
could delay or impair the ability of the Company to consummate such Sale of the
Company;

     

    (b)           if
such transaction involves the sale of Company Stock, to sell the same proportion
of shares of Company Stock beneficially held by such Shareholder as is being
sold by the Selling Investors to the Person to whom the Selling Investors
propose to sell their shares, and, except as permitted in Section 3.3
below, on the same terms and conditions as the Selling Investors;

     

    (c)           to
execute and deliver all related documentation and take such other action in
support of the Sale of the Company as shall reasonably be requested by the
Company or the Selling Investors in order to carry out the terms and provision
of this Section 3, including without limitation tendering all shares of
Company Stock held by each such Shareholders (or as to which such Shareholder
has power of disposition) which are the subject of the Sale of the Company in
accordance with the terms of the Sale of the Company, executing and delivering
instruments of conveyance and transfer, and any purchase agreement, merger
agreement, indemnity agreement, escrow agreement, consent, waiver, governmental
filing, share certificates duly endorsed for transfer (free and clear of
impermissible liens, claims and encumbrances) and any similar or related
documents;

     

    


    
      
        
           


        

        
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    (d)           not
to deposit, and to cause their Affiliates not to deposit, except as provided in
this Agreement, any Company Stock owned by such party or Affiliate in a voting
trust or subject any Company Stock to any arrangement or agreement with respect
to the voting of such Company Stock, unless specifically requested to do so by
the acquiror in connection with the Sale of the Company; and

     

    (e)           to
refrain from exercising any dissenters’ rights, preemptive rights or rights of
appraisal or similar rights under applicable law at any time with respect to
such Sale of the Company.

     

    3.3            Exceptions.  Notwithstanding
the foregoing, a Shareholder will not be required to comply with
Section 3.2 above in connection with any proposed Sale of the Company (the
“Proposed
Sale”) unless:

     

    (a)           each
Holder shall be required to make substantially the same representations,
warranties and covenants and shall have substantially the same indemnification
obligations, if any, and any such representations, warranties, covenants or
indemnification obligations shall be customary;

     

    (b)           the
liability for indemnification, if any, of such Shareholder in the Proposed Sale
and for the inaccuracy of any representations and warranties made by the Company
in connection with such Proposed Sale, is several and not joint with any other
Person, and is pro rata in accordance with such Shareholder’s relative ownership
of the Company Stock;

     

    (c)           upon
the consummation of the Proposed Sale, (i) each holder of each series of
the Company’s Preferred Stock and each holder of the Company’s Common Stock will
receive the same form of consideration for their shares of Common Stock and
Preferred Stock, (ii) each holder of a series of Preferred Stock will
receive the same amount of consideration per share of such series of Preferred
Stock, (iii) each holder of Common Stock will receive the same amount of
consideration per share of Common Stock, and (iv) unless the holders of at
least sixty-six and two-thirds percent (66 2/3%) of the Preferred Stock then
outstanding (voting together as a single class on an as-converted basis) elect
otherwise, if the Proposed Sale is a Deemed Liquidation, then the aggregate
consideration receivable by all holders of the Preferred Stock and Common Stock
shall be allocated among the holders of Preferred Stock and Common Stock on the
basis of the relative liquidation preferences to which the holders of each
respective series of Preferred Stock and the holders of Common Stock are
entitled in a Deemed Liquidation in accordance with the Restated Articles in
effect immediately prior to the Proposed Sale; and

     

    (d)           subject
to clause (c) above, requiring the same form of consideration to be received by
the holders of the Company’s Common Stock and Preferred Stock, if any holders of
any capital stock of the Company are given an option as to the form and amount
of consideration to be received as a result of the Proposed Sale, all Holders of
such capital stock will be given the same option.

     

    3.4            Restrictions
on Sales of Voting Control Transactions.  Unless the
holders of at least sixty-six and two-thirds percent (66 2/3%) of Preferred
Stock (voting together as a single class on an as-converted basis) elect
otherwise, no Shareholder shall be a party to any Sale of Voting Control
Transaction unless all holders of Preferred Stock are allowed to participate in
such transaction and the consideration received pursuant to such transaction is
allocated among the parties thereto in the manner specified in the Restated
Articles in effect immediately prior to the Sale of Voting Control Transaction
(as if such transaction were a Deemed Liquidation).

     

    


    
      
        
           


        

        
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    3.5            Actions
to be Taken Upon a Qualified IPO.  In the event that
the Selling Investors and a majority of the members of the Board approve a
Qualified IPO in writing, specifying that this Section 3 shall apply to
such transaction, then each Shareholder hereby agrees to consent to and raise no
objection against the Qualified IPO, and use its best efforts to execute and
deliver all related documentation and take such other action in support of the
Qualified IPO as shall reasonably be requested by the Company and/or the Selling
Investors.

     

    3.6            Binding
Effect on Future Holders of Common Stock.  In furtherance of
the obligations set forth in this Section 3, the Company shall take all
necessary steps to ensure that each future holder of Common Stock, and/or
options therefore, representing at the time of issuance or grant one percent
(1%) or more of the Company’s outstanding capital stock calculated on a
fully-diluted basis (in the manner set forth in Section 3 of that
Investors’ Rights Agreement of even date) shall execute a counterpart signature
page to this Agreement and agree to be bound by the provisions of this
Section 3.

     

    4.           TRANSFEREES; LEGENDS ON
CERTIFICATES.

     

    4.1            Effect on
Transferees.  Each and every
transferee or assignee of any shares of Company Stock from any Holder shall be
bound by and subject to the terms and conditions of this Agreement that are
applicable to the transferor or assignor of such shares, and the Company shall
require, as a condition precedent to the transfer of any Company Stock subject
to this Agreement, that the transferee agrees in writing to be bound by, and
subject to, all the terms and conditions of this Agreement.  To ensure
compliance with the restrictions referred to herein, each Holder purporting to
transfer or assign any shares of Company Stock agrees that the Company may issue
appropriate “stop-transfer” instructions.  The Company shall not (a)
permit any transfer on its books of any of its shares which shall have been
transferred in violation of any of the provisions set forth in this Agreement or
(b) treat as owner of such shares or accord the right to vote as owner or pay
dividends to any transferee to whom such shares shall have been transferred in
violation of any of the provisions set forth in this Agreement.  Upon
effectiveness of a transfer or assignment in compliance with this
Section 4, Exhibit A or B, as applicable, of this Agreement shall be
automatically amended so that such transferee or assignee’s name is listed on
Exhibit A or B and such transferee or assignee becomes a Holder
hereunder.

     

    4.2            Legend.  The Holders agree
that all Company share certificates now or hereafter held by them that represent
Company Stock subject to this Agreement will be stamped or otherwise imprinted
with a legend to read as follows:

     

    “THE
SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AGREEMENTS AND RESTRICTIONS
WITH REGARD TO THE VOTING OF SUCH SHARES AND THEIR TRANSFER, AS PROVIDED IN THE
PROVISIONS OF A VOTING AGREEMENT, A COPY OF WHICH IS ON FILE IN THE OFFICE OF
THE SECRETARY OF THE CORPORATION.”

     

    


    
      
        
           


        

        
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    5.           ENFORCEMENT
OF AGREEMENT.  Each of the
Holders acknowledge and agree that any breach by any of them of this Agreement
shall cause the other Holders irreparable harm which may not be adequately
compensable by money damages.  Accordingly, in the event of a breach
or threatened breach by a Holder of any provision of this Agreement, the Company
and each other Holder shall each be entitled to seek the remedies of specific
performance, injunction or other preliminary or equitable relief, including the
right to compel any such breaching Holder, as appropriate, to vote such Holder’s
shares of capital stock of the Company in accordance with the provisions of this
Agreement, without having to prove irreparable harm or actual
damages.  The foregoing right shall be in addition to such other
rights or remedies as may be available to the Company or any Holder for any such
breach or threatened breach, including but not limited to the recovery of money
damages.

     

    6.           TERM.  This Agreement
shall commence on the Effective Date and shall terminate upon the first to occur
of the following:

     

    (a)           A
termination effected in accordance with the provisions of
Section 7.12;

     

    (b)           Immediately
prior to the consummation of a Qualified IPO; or

     

    (c)           Upon
the consummation of a Deemed Liquidation Event in connection with which all
proceeds received by the Holders are cash and/or publicly-traded
securities.

     

    7.           GENERAL
PROVISIONS.

     

    7.1            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 any Investor, at such Investor’s address or facsimile number 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.

     

    


    
      
        
           


        

        
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    (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, 650 Town Center Drive, 4th Floor,
Costa Mesa, CA 92626, Facsimile: 714-428-5992.

     

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

     

    7.2            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.

     

    7.3            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.

     

    7.4            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 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.

     

    7.5            Third
Parties.  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.

     

    7.6            Successors
And Assigns.  Except as
otherwise provided in this Agreement, 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.  In furtherance and not in
limitation of the foregoing, the rights of any Investor contained in this
Agreement may be transferred or assigned by such Investor to a transferee or
assignee of Company Stock that is an “Affiliate”
of such Investor (as such term is defined under Rule 144 as promulgated by the
Securities Act), which acquires not less than ten percent (10%) shares of
Company Stock then held by such Investor (as adjusted for stock splits, stock
dividends, recapitalizations and the like); provided, however, that (i) the transferor
shall, within reasonable time after such transfer, furnish to the Company
written notice of the name and address of such transferee or assignee and the
securities with respect to which such transfer or assignment is being made and
(ii) such transfer shall comply with the terms of Section 4.1
hereof.

     

    


    
      
        
           


        

        
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    7.7            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.

     

    7.8            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.

     

    7.9            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.

     

    7.10            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 7.9, 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 7.9 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.

     

    7.11            Further
Assurances; Enforcement.  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.  Each of the Holders and the Company agree not to vote
any Company Stock, or to take any other actions, that would in any manner
defeat, impair, be inconsistent with or adversely affect the stated intentions
of the parties under Sections 2 and 3 of this Agreement; provided, however,
that the Company shall have no obligation to enforce any right among the Holders
in this Agreement, to arbitrate any dispute or to reject any vote of any party
otherwise in accordance with applicable corporate law, absent a court order to
do so.

     

    


    
      
        
           


        

        
          -9-

          
            

          

        

        
           


        

      

    

    


    7.12            Amendment
and Waivers.  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.

     

    7.13            No
Liability for Election of Recommended Directors.  Neither the
Company, any Shareholder, any Investor, nor any officer, director, shareholder,
partner, member, affiliate, employee or agent of any such party, makes any
representation or warranty as to the fitness or competence of the nominee of any
party hereunder to serve on the Board by virtue of such party’s execution of
this Agreement or by the act of such party in voting for such nominee pursuant
to this Agreement.

     

    7.14            No
Impairment.  The Company shall not take, or fail to take, any
action, or avoid or seek to avoid the observance or performance of any of the
terms of this Agreement to be observed or performed hereunder, and will at all
times in good faith assist in the carrying out of all the provisions of this
Agreement and in the taking of all action as may be necessary or appropriate in
order to protect the rights of the Holders hereunder.

     

    [Signature
Pages Follow]

     

    


    
      
        
           


        

        
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    In
Witness Whereof, the parties have executed
this Amended and Restated Voting 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 Voting Agreement]

                    	 
      
	 
      	 
      	 
      


            

            


          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Voting 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 Voting Agreement]

                      	 
      
	 
      	 
      	 
      


              

              


            

             


          

          
             


            
              

            

          

          
             


          

        

      

    

    In
Witness Whereof, the parties have executed
this Amended and Restated Voting 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 Voting Agreement]

                    	 
      
	 
      	 
      	 
      


            

            


          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Voting 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: /s/
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: /s/
A. J. C. van den Ouweland
Title:

         

      

    

    STICHTING
CUSTODY ROBECO MASTER

    CLEAN
TECH (USD)

     

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

       

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


      

    

    


    
      
        
          
            
              	 
      	
                      [Signature
      Page to Amended and Restated Voting Agreement]

                    	 
      
	 
      	 
      	 
      


            

            


          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


    In
Witness Whereof, the parties have executed
this Amended and Restated Voting 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 Voting 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 ROBECO 

                MASTER
      CLEAN TECH (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 ROBECO 

                MASTER
      CLEAN TECH (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

              


      

    

    


     

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    EXHIBIT B

     

    SHAREHOLDERS

     

    
      
        	
                Name
      and Address and Fax Number

              	
                Number
      of Shares

                of
      Common Stock

              
	
                Jay
      Zoellner

              	
                1,480,000

              
	
                Shiva
      Subramanya

              	
                1,200,000

              
	
                Staffan
      Akerstrom

              	
                1,120,000

              
	
                Charles
      Allured

              	
                210,000

              
	
                George
      Botich

              	
                200,000