Silicon Valley Bank
December
30, 2009
Silicon Valley Bank
00 Xxxxxxxxxx Xxxxx, Xxxxx
000
Xxxxxx, XX 00000
Re: Registration
Rights
Ladies
and Gentlemen:
This
letter agreement (this “Agreement”) sets
forth certain mutual understandings among Energy and Power Solutions, Inc.
(“EPS”) and
Silicon Valley Bank (“SVB”) relating to
that certain Warrant to Purchase Stock (the “Warrant”) issued to
SVB in connection with that certain Loan and Security Agreement between EPS and
SVB dated December 30, 2009. Capitalized terms that are used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
Warrant.
Reference
is made to Section 3.3 of the Warrant, which provides that the Shares (as such
term is defined in the Warrant), and the common stock issuable upon conversion
of the Shares, shall have “piggyback” and Form S-3 registration rights pursuant
to and as set forth in the Company’s Amended and Restated Investors’ Rights
Agreement, dated as of April 17, 2009 (the “XXX”), a copy of
which is attached hereto as Exhibit
A. The parties
hereto acknowledge and agree that SVB, upon an exercise of the Warrant,
shall be entitled to the rights as a Holder of Registrable Shares (as such terms
are defined in the XXX) set forth in Sections 2.3, 2.4, 2.5 and 2.8(a) of the
XXX (collectively, the “Registration Rights”)
and that the shares of common stock issuable upon conversion of the Shares shall
be deemed Registrable Shares for purposes of such provisions. As a
condition to the grant of the Registration Rights, SVB agrees to be bound by the
provisions of Sections 2.6, 2.7 2.8(b), 2.9 and 5 of the XXX. The
parties hereto acknowledge and agree that SVB’s Registration Rights shall
terminate upon the earliest to occur of the date (a) that is seven (7) years
after the closing date of EPS’ Qualified IPO (as such term is defined in the
XXX); (b) on which any Registrable Securities proposed to be sold by a
Holder in a registration pursuant to Section 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.
If the
foregoing accurately sets forth the agreements that EPS and SVB have reached
with respect to the subject matter hereof, please indicate your agreement to the
terms herein by countersigning in the place indicated below.
[SIGNATURE
PAGE FOLLOWS]
Very
truly yours,
ENERGY
AND POWER SOLUTIONS, INC.
/s/ Xxxxx
Ludlum______________
By: Xxxxx
Xxxxxx
Title:
CFO
Accepted
and agreed:
SILICON
VALLEY BANK
/s/ Xxxx
Miklinski____________
By: Xxxx
Xxxxxxxxx
Title:
Vice President