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EXHIBIT 9.4
AMENDMENT NO. 3 TO INVESTORS RIGHTS AGREEMENT
This AMENDMENT NO. 3 TO INVESTORS RIGHTS AGREEMENT (this
"Amendment") is made effective as of October 25, 2000 and amends that certain
INVESTORS RIGHTS AGREEMENT, dated August 22, 1997, by and among CAPSTONE TURBINE
CORPORATION, a California corporation (the "Company") and certain of its
shareholders, as amended to the date hereof (the "Agreement").
Whereas, the parties hereto are parties to the Agreement, and
desire to amend the Agreement to reduce certain notice periods set forth
therein; and
Whereas, Section 7.2 of the Agreement provides that the
Agreement may be amended with the written consent of the holders of at least a
majority of the Registrable Shares, as defined in the Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
agreements contained herein, the parties agree as follows:
1. "Market Stand-Off" Agreement. Section 3.11(ii) of the
Agreement is hereby amended and restated to read in its entirety:
"(ii) all officers and directors of the Company and all
other persons with registration rights (other than pursuant to
this Agreement) enter into similar agreements."
2. Other Registration Rights. The second sentence of Section
3.12 of the Agreement is hereby amended and restated to read in its
entirety:
"The Company may grant registration rights to any holder
of Securities or options of the Company, or may include shares
held by any such person in any offering contemplated by this
Agreement (including shares of Holders who are not entitled to
exercise rights under this Article III by reason of Section 3.15
hereof) and any shares so included shall be considered
Registrable Shares for all purposes hereunder, in each case
without the consent of the Holders so long as the registration
rights or rights to participation granted are on a parity with
the Holders, and provided that such persons agree in writing to
be bound by the provisions of this Agreement and provided
further that, if such rights are granted on parity with the
Holders, and if the aggregate number of Registrable Shares is
increased thereby by at least 10%, the number of permitted
Demand Registrations and the number of permitted registrations
under Section 3.3(a) shall each be increased by at least one."
3. No Further Changes. Except as provided above, the Agreement
shall remain in full force and effect.
4. Governing Law and Construction. This Amendment will be
governed by and construed in accordance with the laws of California,
without regard to the principles
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of conflicts of law. The language of this Amendment shall be deemed to
be the result of negotiation among the parties and their respective
counsel and shall not be construed strictly for or against any party.
Each party (i) agrees that any action arising out of or in connection
with this Amendment shall be brought solely in federal or state courts
in Los Angeles, California, (ii) hereby consents to the sole
jurisdiction of such courts, and (iii) agrees that, whenever a party is
requested to execute one or more documents evidencing such consent, it
shall do so immediately.
5. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this
Agreement by signing any such counterpart.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first written above.
CAPSTONE TURBINE CORPORATION
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Chief Financial Officer
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